Would You Like Fries With Your First Amendment

A recent case from the United States Court of Appeals for the Fourth Circuit provides one more example of how social media may or may not fit neatly into traditional legal analysis. And more to the point, can a state regulatory board tell a blogger what he can and can’t say?

Steve Cooksey is a blogger who was once rushed to an emergency room on the verge of a diabetic coma. He was diagnosed with Type II diabetes and advised to adopt a low fat, high carbohydrate diet. Cooksey, however, had other ideas, and opted for the “Paleolithic Diet.” The Paleolithic Diet features foods high in fat and low in carbs. It is similar to the diet of humans living in the Stone Age. Here is some rare video of the diet in action.   

Cooksey achieved remarkable results with his diet, and became an advocate for it. He created a Web site —  http://www.diabetes-warrior.net/. He used the site to talk about his lifestyle changes, and included personal meal plans and favorite recipes. He included a disclaimer making it clear that he was not a licensed medical professional and had no formal medical education or any dietary qualifications. 

Cooksey’s readership swelled (no pun intended) to 2,000 unique visitors. The site included an advice q/a section, with Cooksey responding to readers’ questions; a free “mentoring” section, where readers would post stories about their own experiences, to which Cooksey would respond; and a fee-based “Life Coaching” service. In exchange for the fee, Cooksey offered individualized support and advice.  The fee entitled subscribers to a set number of monthly interactions. 

At some point, after he spoke at a public forum, someone reported Cooksey to North Carolina’s State Board of Dietetics/Nutrition. After going back and forth with the Board, Cooksey ultimately took down his fee-based service because in the Board’s view that constituted the unlicensed practice of dietetics. The Board also sent Cooksey printouts of his Web site, marking with a red pen those portions that needed to be removed. (Is it hard to use a pen with such a heavy hand? Just wondering). Cooksey brought his site into compliance with the Board’s demands, which led the Board to send a letter informing that it was closing its investigation, but reserving the right to monitor the site going forward. 

Cooksey apparently, finally had enough with the nice guy routine, and he filed suit in federal district court claiming that the Board’s actions violated his First Amendment rights. But the district court, noting that Cooksey had not actually been disciplined by the Board, dismissed the suit, concluding that Cooksey lacked standing to bring the action.  In non-legal circles this is known as “no harm/no foul.”

But the appellate court disagreed. It noted that the Board’s actions caused Cooksey to engage in self-censorship.  In the appellate court’s view, this constituted a “credible” injury that was neither “imaginary or speculative.” It sent the case back to the district court and directed it to decide the case on the merits.

According to Cooksey, he fought the law and he won. And that is sort of true. He certainly won the preliminary battle. But all that means is the court needs to hear his case. The question remains whether a state board can limit the speech of a blogger who is not passing himself off as a licensed expert. It will be interesting to see how it shakes it out. This may come down to a question of whether Cooksey’s site is commercial speech or not. If it is, the state is more likely to prevail, because typically protections for commercial speech are less than for non-commercial speech. Commercial speech is speech that “proposes a transaction.” The fee-based service may fall into that category, but the rest of the Web site likely will not. We will see. 

But I wonder if Cooksey will retain this guy to represent him.