Free Speech Victory for “Caveman” Blogger!

By Paul Sherman

IJ client Steve Cooksey is ready for a low-carb celebration! On February 9, the North Carolina Board of Dietetics/Nutrition issued new guidelines that will allow Steve and others like him to offer dietary advice and guidance without the threat of criminal punishment. The new guidelines bring to a close a First Amendment fight that had gone on for nearly three years.

Before Steve Cooksey started fighting for his First Amendment rights, he was fighting for his life. In 2009, Steve was rushed to the hospital in a near diabetic coma. He was diagnosed with Type II diabetes, the result of years of sedentary living and poor diet. When he was discharged from the hospital, he resolved to change his life.

After investigating his options, Steve decided to drastically cut his carbohydrate intake. He eventually transitioned to a “Paleolithic” diet of meats, fish, fats, nuts and vegetables, but no agricultural grains, sugars or junk foods. Combined with an intense exercise regimen, Steve lost 78 pounds, no longer requires drugs or insulin, and is healthier than ever.

Inspired to share his story with others, in 2010, Steve started a blog, www.diabetes-warrior.net, which now has thousands of regular readers. The following year he started answering questions from his readers in a Dear Abby-style advice column. He also started offering a paid life-coaching service, designed to help other people who were struggling with the transition to a low-carb diet.

That attracted the attention of the North Carolina Board of Dietetics/Nutrition, which sent Steve a 19-page printout of his website, indicating in red pen on a line-by-line basis what he could and could not say about diet without becoming a state-licensed dietician. Unwilling to be silenced, Steve joined with the Institute for Justice to fight for his First Amendment rights.

Like all IJ cases, Steve’s fight was an uphill battle against long odds. His case was initially dismissed by the trial court, which concluded that ordinary First Amendment principles don’t apply when the government suppresses speech through occupational licensing. But the 4th U.S. Circuit Court of Appeals disagreed, concluding that Steve’s case must be allowed to go forward.

Following the 4th Circuit’s ruling, the North Carolina board waved the white flag and agreed to modify the guidelines for unlicensed speakers who want to offer dietary advice and guidance. The new guidelines make clear that people like Steve are free to offer such advice and guidance, for free or for pay, so long as they do not falsely claim to be state-licensed dietitians. The guidelines also contain a safe-harbor provision that makes clear that speakers who disclose that they are not licensed dietitians will not be considered to be engaged in the unlicensed practice of dietetics.

The board’s surrender lets Steve get back to speaking and represents an important victory in IJ’s fight to protect occupational speech from government censorship. That’s something worth celebrating. So fire up the grill and throw on a couple of steaks! But keep an eye on them—as Steve will tell you, a good steak, like government censorship, is best when rare.

Paul Sherman is an IJ senior attorney.