RALEIGH — The 4th Circuit U.S. Court of Appeals June 27 reversed a trial judge’s decision to dismiss Charlotte-area “paleo diet” blogger Steve Cooksey’s free speech case.
In October, a U.S. District Court judge in Charlotte threw out Cooksey’s lawsuit, which claimed the North Carolina Board of Dietetics/Nutrition had violated his freedom of speech by censoring his blog about his Paleolithic or “caveman” diet.
The board went through 19 pages of Cooksey’s website with a red pen, marking out what he could and couldn’t say about his diet. Specifically, the board’s director told Cooksey he could not give any individualized or group-specific dietary advice legally unless he had a license issued by the state. In his case, he was not allowed to tell diabetics what they should and should not eat.
The board then asked him to change and remove portions of his website and made it clear he could face fines and jail time if he did not comply.
When the libertarian public-interest law firm Institute for Justice sued on Cooksey’s behalf last summer, U.S. District Judge Max Coburn dismissed the case on the grounds that Cooksey “had not yet been injured” because the board hadn’t yet made a “final or official” decision about his website.
Coburn also agreed with the state that even if the board “officially” had demanded that Cooksey remove parts of his website, it would not have violated his freedom of speech, because — the reasoning went — dietary advice is not a constitutionally protected form of speech; it is occupational conduct, which government must regulate to protect consumer safety.
The three-judge appellate panel — which included retired U.S. Supreme Court Justice Sandra Day O’Connor — disagreed. It held that advice — even advice that falls under the umbrella of occupational licensing — is constitutionally protected speech, and that Cooksey suffered a First Amendment injury.
They sent the case back to the trial court and ordered that it be re-analyzed under a First Amendment framework. (See a PDF of the opinion here.)
“This decision will help ensure that the courthouse doors remain open to speakers whose rights are threatened by overreaching government,” said institute Senior Attorney Jeff Rowes. “In America, citizens don’t have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech.”
In their opinion, the appellate judges wrote that they had “no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board.”
It dismissed the board’s argument that its review of Cooksey’s website did not chill his speech, noting that the “red-pen markup of his website from the State Board Complaint Committee … surely triggered the same trepidation we have all experienced upon receiving such markings on a high school term paper.”
Free speech vs. occupational licensing
“This is a decisive, pivotal decision in Steve Cooksey’s favor,” Rowes said. “It will be an important precedent not just in his case, but for cases all over the country where licensing boards are trying to censor people’s advice.”
Coburn’s new decision will have to be based on the principle that advice is speech protected by the First Amendment, Rowes said. “That drastically changes things.”
“The state can now argue, ‘it’s true we restricted his speech, but this particular restriction doesn’t violate the First Amendment for reasons A, B and C,’” Rowes said. “What [it] can’t say at this point is that this is not a First Amendment case.”
Rowes said the state might argue that it has a legitimate interest in restricting Cooksey’s speech to protect public health, as it did the first time around, saying Cooksey’s “target audience is a uniquely vulnerable population that suffers from the chronic and life-threatening condition of diabetes and often struggles to control blood sugar levels,” and that his advice could have “potentially serious health implications.”
“We will argue that speech in this context gets a very, very high degree of protection, and it should be almost impossible for Steve Cooksey to lose, because they are censoring his speech on the basis of its content,” Rowes said.
“They’re saying what you have written on the Internet, those words are illegal because of their meaning,” he said. “That is content-based censorship, and it is virtually a per se violation of the First Amendment.”
“That’s why the state struggled so hard to keep this out of the First Amendment box,” he added.
Rowes said telling someone what food to buy at the grocery store is “not the equivalent of telling him to open his mouth and drilling his teeth out.”
“Nobody doubts the government has the traditional power to regulate the drilling of teeth or installing of pipes,” he said, but what it can’t do is regulate ‘occupational conduct’ that consists solely of a message. “That’s not conduct, that’s speech.”
Rowes said the Supreme Court has held that other occupational advice, such as legal advice, is a form of protected speech. Occupational licensing laws regulating occupations such as law, psychological counseling, investment advising, etc., must conform to the First Amendment, he said.
The specific question Cooksey’s case will answer “is whether one-on-one advice is going to be a well-protected or ignored form of speech and that has dramatic implications for people across the country, because there are lots of occupations that consist mainly of speech.”
“There are millions of people who exchange advice, both for money and for free, both as amateurs and professionals, over the Internet,” Rowes said. “This case ultimately will be an important benchmark for determining whether the kind of advice people have been sharing since the advent of language — about parenting, marriage, relationships, you name it — is going to be a protected form of speech or whether the government can regulate and censor it.”
Rowes said Cooksey’s case could still end up in the Supreme Court, although it might bounce back and forth a few times between the trial court and appellate court before it does.
Neither the N.C. Board of Dietetics/Nutrition nor its primary lawyer, Clark Goodman, responded to emails or phone calls asking for comment.
The American Civil Liberties Union of North Carolina filed a friend-of-the-court brief supporting Cooksey’s case.
Sara Burrows is an associate editor of Carolina Journal.