Pay Attention First Amendment Attorney Marc J. Randazza,
You may learn a thing a or TWO.
"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 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."
"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.”"
"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.”
Source of Abovehttp://foodriotradio.com/2013/07/n-c-paleo-diet-blogger-wins-a-round-in-federal-court/
"Steve Cooksey (“Cooksey” or “Appellant”) appeals the
district court’s dismissal of his complaint filed against
Michelle Futrell, Brenda Burgin Ross, Kathleen Sodoma, Christie
Nicholson, Phyllis Hilliard, Cathleen Ostrowski, and Richard
Holden, members of the North Carolina Board of
Dietetics/Nutrition (collectively, the “State Board” or
“Appellees”). Cooksey alleges the State Board violated his
First Amendment rights by causing him to self-censor certain
speech on his website wherein he offered both free and fee-based
dietary advice to website visitors.
The district court held that Cooksey did not have standing to bring these claims,
reasoning that he did not suffer an actual or imminent injuryin-fact.
The district court erred, however, in not analyzing
Cooksey’s claims under the First Amendment standing framework.
As explained below, under that analysis, Cooksey has
sufficiently satisfied the First Amendment injury-in-fact
requirement by showing that the State Board’s actions had an
objectively reasonable chilling effect on the advice and
commentary he posted on his website. His claims are likewise
ripe for adjudication. We thus vacate the district court’s
order dismissing Cooksey’s complaint, and remand so that the
district court may consider Cooksey’s claims on the merits.
Appeal: 12-2084 Doc: 55 Filed: 06/27/2013
"On May 29, 2012, Cooksey filed suit in the Western District of North Carolina, alleging Appellees violated his First Amendment rights. Specifically, the complaint contains three counts alleging violations of 42 U.S.C. § 1983:
(1) Count One: a violation based on restriction of the
“Dear Abby-style Advice Column”: the application of
the Act “is a content-based restriction on his speech
in that the State Board declared his speech illegal
based on the fact that it involved advice about diet
and not advice about any other topic such as auto
mechanics, taking the SATs, or marriage”;
(2) Count Two: a violation based on the restriction of
the free “Personal Dietary Mentoring” that Cooksey
offered through his website: “Defendants’ prohibition
of Plaintiff Cooksey’s personal, ongoing,
uncompensated mentorship . . . is an unconstitutional
prohibition on something that Americans have done
since the inception of the United States: share advice
among friends”; and
(3) Count Three: a violation based on the restriction
of Cooksey’s fee-based “‘Diabetes Support’ LifeCoaching” packages:
“The speech associated with Plaintiff Cooksey’s personal, ongoing,
uncompensated mentorship of friends, acquaintances, readers, or
family, as described in this Complaint, which
Plaintiff Cooksey contends is speech protected by the
First Amendment, does not lose its First Amendment
protection simply because Plaintiff Cooksey charges a
fee for that exact same speech.”
"In his complaint and its attached exhibits, Cooksey has sufficiently shown that he has experienced a non-speculative and objectively reasonable chilling effect of his speech due to the actions of the State Board. The complaint states, “But for the State Board’s red-pen review of his website, conversations and emails with officials of the [State Board], . . . Cooksey would not have a speech-chilling uncertainty about the legality
of private conversations and correspondence . . . in which he expresses opinions in the form of personal dietary advice” and he “would resume his Dear Abby-style advice column[.]” J.A.
(Compl. ¶ 103-04). Most telling is the fact that Cooksey
actually “ceased expressing opinions in the form of personal
dietary advice,” id. at 25, on the mentoring and Dear-Abby-style
sections of the website. He did not even have to go that far
for an injury-in-fact to lie. See Benham, 635 F.3d at 135 (“[A]
claimant need not show [he] ceased those activities altogether
to demonstrate an injury in fact.” (internal quotation marks
Further, the State Board’s actions would be “likely to
deter a person of ordinary firmness from the exercise of First
Amendment rights.” Benham, 635 F.3d at 135 (internal quotation
marks and alteration omitted). Cooksey received a telephone
call from the highest executive official of a state agency, who
told him she had the “statutory authority” to seek an injunction
against him if he did not bring his website in line with the
Act’s proscriptions. J.A. 18 (Compl. ¶ 64).
He received a redpen mark-up of his website from the State Board Complaint
Committee, which surely triggered the same trepidation we have
all experienced upon receiving such markings on a high school
term paper. Furthermore, the red-pen review was accompanied by
the statement, “we would ask that you make any necessary changes
to your site, and moreover, going forward, align your practices
with the guidance provided.” Id. at 66. And Cooksey was told,
in effect, that he would remain under the watchful eye of the
State Board in a letter signed by Burill, which stated, “As with
all complaints, the Board reserves the right to continue to
monitor this situation.” Id. at 105.
A person of ordinary firmness would surely feel a chilling effect -- as Cooksey did.
In fact, this case presents more persuasive evidence of chilling than another case from this court in which standing was achieved. In North Carolina Right to Life, Inc. v. Bartlett (“NCRL”), this court found that NCRL, a non-profit group with the purpose of “protect[ing] human life,” had standing to challenge certain state election regulations that would impose criminal penalties on organizations making contributions for a
“political purpose.” 168 F.3d 705, 708, 709 (4th Cir. 1999).
NCRL wrote to the State Board of Elections to inquire whether
some of its activities (specifically, distributing voter guides)
would violate the regulations at issue, and the Board answered
in the affirmative. See id. at 709. “As a result,” the court
held, “NCRL refrained from disseminating its guide, and its
speech was chilled.” Id. at 710. The court stated, “this case
presents a statute aimed directly at plaintiffs who ‘will have
to take significant . . . compliance measures or risk criminal
prosecution[.]’” 168 F.3d at 711 (quoting Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 392 (1988)).
In the present case, we not only have evidence of
specific and -- unlike NCRL -- unsolicited written and oral
correspondence from the State Board explaining that Cooksey’s
speech violates the Act, but we also have a plaintiff who
stopped engaging in speech because of such correspondence, and
an explicit warning from the State Board that it will continue
to monitor the plaintiff’s speech in the future. See J.A. 18
(Compl. ¶ 63-64) (Burill told Cooksey “that he and his website
were under investigation” and that the State Board “does have
the statutory authority to seek an injunction to prevent the
unlicensed practice of dietetics.”); id. at 39 (red-pen review)
(“You should not be addressing diabetic’s specific questions.
You are no longer just providing information when you do this,
you are assessing and counseling, both of which require a
license.”); id. at 66 (Burill email) (“[W]e would ask that you
make any necessary changes to your site, and moreover, going
forward, align your practices with the guidance provided.”); id.
at 105 (Burill letter) (“[T]he Board reserves the right to
continue to monitor this situation.”). Therefore, we have no
trouble deciding that Cooksey’s speech was sufficiently chilled
by the actions of the State Board to show a First Amendment
Per NCRL, Cooksey also satisfies the injury-in-fact
requirement by showing a credible threat of prosecution under
the Act. This court explained,
When a plaintiff faces a credible threat of
prosecution under a criminal statute he has standing
to mount a pre-enforcement challenge to that statute.
A non-moribund statute that facially restricts
expressive activity by the class to which the
plaintiff belongs presents such a credible threat,
and a case or controversy thus exists in the absence
of compelling evidence to the contrary. This
presumption is particularly appropriate when the
presence of the statute tends to chill the exercise of
First Amendment rights.
NCRL, 168 F.3d at 710 (internal quotation marks, citations, and
alterations omitted) (emphasis supplied).
Cooksey does not have a dietician license; therefore,
he belongs to the class implicated by the Act. See NCRL, 168
F.3d at 710. It has never been alleged that the Act is moribund
(as evidenced by the fact that Burill told Cooksey that the
State Board could seek an injunction pursuant to the Act). See
id. Therefore, we are left with the question of whether the Act
facially restricts Cooksey’s expressive activity.
The Act makes it a Class 1 misdemeanor for people
without a dietitian license to, inter alia, “[p]rovide
nutrition counseling in health and disease,” “[e]stablish
priorities, goals, and objectives that meet nutrition needs
. . . ,” and “[a]ssess the nutritional needs of individuals and groups, . . . .”
N.C. Gen. Stat. §§ 90-352(4), 90-366.
Cooksey’s complaint describes speech that could fall under each
of these categories. See J.A. 14 (Compl. ¶ 42) (alleging
Cooksey answered questions on his website “express[ing] his
opinion[s]” on dietary issues); id. at 15 (Compl. ¶ 44)
(alleging Cooksey “provided links to his personal meal plan and
previous posts on food”); id. (Compl. ¶ 46) (alleging Cooksey
“recommended that [a] questioner’s friend eat as Plaintiff
Cooksey does and exercise as much as the friend can”).
Therefore, his speech subjects him to a “credible threat” of the
criminal penalties set forth in the Act. NCRL, 168 F.3d at 710.5
For these reasons, Cooksey has sufficiently proven
injury-in-fact, and the district court’s conclusion to the
contrary was error.
Once Cooksey clears the initial hurdle of injury-infact, he easily satisfies
the other two elements of the standing inquiry,
causation and redressibility. First, causation is
satisfied where “a causal connection between the injury and the
conduct complained of that is ‘fairly traceable,’ and not ‘the
result of the independent action of some third party not before
the court.’” Frank Krasner Enters., 401 F.3d at 234 (quoting
Lujan at 560-61) (emphasis removed). Second, the redressibility
requirement is satisfied where there is “a non-speculative
likelihood that the injury would be redressed by a favorable
judicial decision.” Id.
The injuries in this case -- a chilling of speech and
threat of prosecution -- were caused directly by the actions of
the State Board. Cooksey’s complaint -- which we must accept as
true -- alleges that Burill, Executive Director of the State
Board, “instructed” him to “take down the part of his website”
that presented the diabetes-support life-coaching packages.
J.A. 18 (Compl. ¶64). And there is no dispute that Burill asked
Cooksey to “align [his] practices with” the comments set forth
in the red-pen review. Id. at 66. As a result, Cooksey removed
certain speech from his website and refrained from offering the
life-coaching packages and engaging in further individualized
advising through his site.
A favorable decision on Cooksey’s behalf would mean the State Board would be enjoined from
enforcing the Act and/or the Act would be deemed unconstitutional. In that case, Cooksey would find full redress, as the advice and mentoring in which he engaged through his website would be restored without fear of penalty.
Appellees contend that the First Amendment standing
principles do not apply here because the Act “is a professional
regulation that does not abridge the freedom of speech protected
under the First Amendment.” Appellees’ Br. 26. Thus, Appellees
claim, “this case is not actually about an infringement of Mr.
Cooksey’s rights under the First Amendment. It is instead about
North Carolina’s authority to license occupations to safeguard
the public health and safety,” and the First Amendment “chilling
doctrine” (i.e., the more lenient standing analysis) does not
apply. Id. The doctrine to which Appellees refer has come to
be called the “professional speech doctrine.” Moore-King v.
Cnty. of Chesterfield, 708 F.3d 560, 568 (4th Cir. 2013).
But Appellees “put the merits cart before the standing
Initiative and Referendum Inst. v. Walker, 450 F.3d
1082, 1093 (10th Cir. 2006). In arguing that Cooksey’s claims
are not justiciable, Appellees first look to the merits of his
First Amendment claims and contend that the professional speech
doctrine precludes them.
In so doing, they rely on cases that were decided on
the merits and did not address a justiciability challenge.
See, e.g., Thomas v. Collins, 323 U.S. 516 (1945)
(Jackson, J., concurring); Moore-King, 708 F.3d 560;
Accountants’ Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir.
The Supreme Court has explained, “whether the statute
in fact constitutes an abridgement of the plaintiff’s freedom of
speech is, of course, irrelevant to the standing analysis.”
Meese v. Keene, 481 U.S. 465, 473 (1987) (internal quotation
Other courts have recognized the same. For example,
in Walker, the Tenth Circuit rejected an argument
similar to Appellees’ argument that “Plaintiffs have not alleged
the invasion of a ‘legally protected interest,’ which they say
is necessary to have standing to sue.” 450 F.3d at 1092.
The Walker court conceded, “a plaintiff whose claimed legal right is
so preposterous as to be legally frivolous may lack standing on
the ground that the right is not ‘legally protected,’” but
continued, “where the plaintiff presents a non-frivolous legal
challenge, alleging an injury to a protected right such as free
speech, the federal courts may not dismiss for lack of standing
on the theory that the underlying interest is not legally
protected.” Id. at 1093.
Thus, “[f]or purposes of standing, we must assume the
Plaintiffs’ claim has legal validity.” Id.; see
also City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)
Appeal: 12-2084 Doc: 55 Filed: 06/27/2013 Pg: 26 of 3127
(“[I]n reviewing the standing question, the court must be
careful not to decide the questions on the merits for or against
the plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims.”).
Therefore, the professional speech doctrine does not
pull the rug from underneath Cooksey at this early stage of the
litigation. Whether the professional speech doctrine -- as this
court has defined it in Bowman and Moore-King -- precludes
Cooksey’s challenges to the Act and the State Board’s actions is
a merits determination that may readily be addressed upon
In determining justiciability, we must also address
whether Cooksey’s claims are ripe. See Allen v. Wright, 468
U.S. 737, 750 (1984) (identifying ripeness, along with standing,
mootness, and political question, as “doctrines that cluster
about Article III” (internal quotation marks omitted)).
Ripeness “concerns the ‘appropriate timing of judicial
intervention.’” Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d
379, 389 (4th Cir. 2001) (quoting Renne v. Geary, 501 U.S. 312,
320 (1991)), overruled on other grounds, Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012).
Traditionally, we consider “(1) the fitness of the issues for
Appeal: 12-2084 Doc: 55 Filed: 06/27/2013 Pg: 27 of 3128
judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat’l Park Hospitality Ass’n
v. Dep’t of Interior, 538 U.S. 803, 808 (2003).
Our ripeness inquiry, however, is inextricably linked
to our standing inquiry. See Doe v. Duling, 782 F.2d 1202, 1206
n.2 (4th Cir. 1986) (“Plaintiff’s personal stake in the outcome
(standing) is directly limited by the maturity of the harm
(ripeness). In any event, both doctrines require that those
seeking a court’s intervention face some actual or threatened
injury to establish a case or controversy.”).
Much like standing, ripeness requirements are also
relaxed in First Amendment cases. See New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995)
(“The primary reasons for relaxing the ripeness analysis in
th[e] [First Amendment] context is the chilling effect that
potentially unconstitutional burdens on free speech may
Indeed, “First Amendment rights . . . are
particularly apt to be found ripe for immediate protection,
because of the fear of irretrievable loss.
In a wide variety of settings, courts have found First Amendment claims ripe, often
commenting directly on the special need to protect against any
inhibiting chill.” Id. (internal quotation marks omitted).
That standing and ripeness should be viewed through
the same lens is evident from Appellees’ arguments on this
Appeal: 12-2084 Doc: 55 Filed: 06/27/2013 Pg: 28 of 3129
point. Just as they argued Cooksey has not been injured for
standing purposes, they also contend Cooksey’s claims are not
ripe because the State Board has taken no action against Cooksey
and has not “specifically determine[d] the point at which
internet communications such as Mr. Cooksey’s constitute the
practice of dietetics/nutrition requiring a license under the
Act[.]” Appellees’ Br. 44.
We disagree. This court stated in Virginia Society
for Human Life, VSHL will face a significant impediment if we delay
consideration of the regulation’s constitutionality.
The presence of the regulation requires VSHL “to
adjust its conduct immediately.” Lujan v. Nat'l
Wildlife Fed’n, 497 U.S. 871, 891 (1990) (noting that
these types of “substantive rules” are “‘ripe’ for
review at once”). . . . Our decision today is not an
abstract interpretation, but a clarification of the
conduct that VSHL can engage in without the threat of
penalty. Therefore, we hold that the controversy is
ripe for review.
263 F.3d at 390 (some internal quotation marks, citations, and
alterations omitted); see also Abbott Labs. v. Gardner, 387 U.S.
136, 153 (1967) (“Where the legal issue presented is fit for
judicial resolution, and where a regulation requires an
immediate and significant change in the plaintiffs’ conduct of
their affairs with serious penalties attached to noncompliance,
access to the courts . . . must be permitted[.]”), abrogated on
other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977).
Appeal: 12-2084 Doc: 55 Filed: 06/27/2013 Pg: 29 of 3130
In the same way, Cooksey’s claims present the question
of whether the Act and actions of the State Board
unconstitutionally infringe on Cooksey’s rights to maintain
certain aspects of his website. No further action from the
Board is needed: it has already, through its executive director,
manifested its views that the Act applies to Cooksey’s website,
and that he was required to change it in accordance with the
red-pen review or face penalties.
Appellees rely on language in the State Board email
and letter suggesting that more discourse could occur, or that
the State Board had not yet made its final decision on this
issue. See, e.g., J.A. 66 (“Should you agree with our comments,
we would ask that you make any necessary changes to your site
. . . ”; “[S]hould you disagree I am happy to discuss.”).
None of the State Board’s statements, however, indicate that Cooksey
is free from the “threat of penalty.” Va. Soc’y for Human Life,
263 F.3d at 390. To the contrary, the last communication from
the State Board to Cooksey specifically stated otherwise. See
J.A. 105 (“As with all complaints, the Board reserves the right
to continue to monitor this situation.”). Cooksey desires “a
clarification of the conduct that [he] can engage in without”
such a threat. Va. Soc’y for Human Life, 263 F.3d at 390.
Therefore, his claims are also ripe."
Source of Above