Arlington, Va.—This morning, in a big win for free speech, the 4th U.S. Circuit Court of Appeals held that diabetic blogger Steve Cooksey’s First Amendment lawsuit against the North Carolina Board of Dietetics/Nutrition may go forward.
Cooksey ran a Dear Abby-style advice column on his blog in which he gave one-on-one advice about how to follow the low carbohydrate “paleo” diet. The Board deemed Cooksey’s advice the unlicensed practice of nutritional counseling, sent him a 19-page print-up of his website indicating in red pen what he was and was not allowed to say, and threatened him with legal action if he did not comply.
The decision reverses a previous ruling by a federal district judge that had dismissed Cooksey’s case, reasoning that advice is not protected speech and hence Cooksey had suffered no injury to his First Amendment rights.
“This decision will help ensure that the courthouse doors remain open to speakers whose rights are threatened by overreaching government” said Institute for Justice 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.”
The three-judge appellate panel, which included retired U.S. Supreme Court Justice Sandra Day O’Connor, held that it had “no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.”
The appellate panel also dismissed the Board’s argument that its 19-page red-pen review of Cooksey’s blog did not chill his speech, noting that the “red-pen mark-up 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.”
The case, which has received significant national media attention, will now be sent back to the district court. Click here for George Will’s syndicated column on the lawsuit.
Steve Cooksey said, “I give people simple advice on what food to buy at the grocery store. I have believed all along that my advice is protected by the First Amendment, and I am looking forward to proving that the censorship of my speech is unconstitutional.”
IJ Attorney Paul Sherman said, “Steve’s case raises one of the most important unanswered questions in First Amendment law: Can occupational-licensing laws trump free speech? Today’s ruling means that we are finally going to get an answer to that question.”
For more on the lawsuit, visit www.ij.org/PaleoSpeech. Founded in 1991, the Virginia-based Institute for Justice is a national public interest law firm that fights for free speech and economic liberty nationwide.