North Carolina Free Speech - Backgrounder

Litigation Backgrounder

Caveman Blogger Fights for Free Speech and Internet Freedom

Challenging the Government’s Authority to Censor Ordinary Advice

 

 

The Issue in a Nutshell:

Can the government throw you in jail for offering advice on the Internet about what food people should buy at the grocery store? 

That is exactly the claim made by the North Carolina Board of Dietetics/Nutrition.  In December 2011, diabetic blogger Steve Cooksey started a Dear Abby-style advice column on his popular blog (www.diabetes-warrior.net) to answer reader questions.  One month later, the State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics.  The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service.  The State Board went through Steve’s writings with a red pen, indicating what he may and may not say without a government-issued license.

But the First Amendment does not allow the government to ban people from sharing ordinary advice about diet, or scrub the Internet—from blogs to Facebook to Twitter—of speech the government does not like.  North Carolina can no more force Steve to become a licensed dietitian than it could require Dear Abby to become a licensed psychologist.

That is why on May 30, 2012, Steve Cooksey joined the Institute for Justice in filing a major free speech lawsuit against the State Board in the U.S. District Court for the Western District of North Carolina, Charlotte Division.  This lawsuit seeks to answer one of the most important unresolved questions in First Amendment law:  When does the government’s power to license occupations trump free speech?




Introduction

Steve Cooksey, a diabetic blogger from Stanley, N.C., is the target of the North Carolina Board of Dietetics/Nutrition’s censorship.  Three years ago, Steve—then a chronically ill, obese couch potato—was rushed to intensive care in a near coma.  He was diagnosed with Type II diabetes and told that he would be dependent on insulin and other drugs for life.  When he was discharged four days later, he resolved to regain control of his health.

Following longstanding government nutritional guidelines, Steve’s dietitians told him to eat a high-carbohydrate/low-fat diet and consume no more than 2,200 calories each day.  But for Steve, who is skeptical by nature, something about this advice just did not add up.  The more he read about diabetes, which is the inability to maintain normal blood-sugar levels, the more Steve doubted that eating a high-carbohydrate diet made sense because carbohydrates raise blood sugar.

Based on his reading and Internet research, Steve decided to drastically cut carbohydrates.  Within a month, his blood sugar had normalized and he did not require insulin or diabetes drugs.  He then transitioned to a “paleolithic” diet of meats, fish, fats, nuts and vegetables, but no agricultural grains, sugars, or junk food.  He also started a caveman-style exercise regimen, running and jumping in bare feet.  He lost 78 pounds, is insulin and drug free, and healthier than ever.

In January 2010, Steve started a blog (www.diabetes-warrior.net) to share his view that a paleolithic diet and exercise are the best for diabetics.  He has thousands of regular readers.  In December 2011, Steve started a Dear Abby-style advice column on his blog to answer reader questions.

That, according to North Carolina, made Steve a criminal.  In January 2011, the North Carolina Board of Dietetics/Nutrition informed Steve that he could not give readers personal advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics.  More amazing, the State Board also told Steve that his private emails and telephone calls with readers and friends amounted to unlicensed “assessing” and “advising.”  The State Board also made Steve shut down his life-coaching service.  The State Board gave Steve a 19-page copy of his own online writings with comments in red pen informing Steve what he is and is not allowed to say.

But the First Amendment does not allow the government to ban people from sharing ordinary advice about health, go through people’s writings with a red pen like a disapproving schoolteacher, and scrub the Internet—from blogs to Facebook to Twitter—of speech the government does not like.  North Carolina can no more force Steve to become a licensed dietitian to write his advice column than it could require the author of Dear Abby to become a licensed psychologist to write hers.  And the State Board certainly cannot prohibit private discussions, even those including advice, about what foods to eat.

That is why, on May 30, 2012, Steve joined the Institute for Justice to file a major free-speech lawsuit to protect Internet freedom and the right of Americans to give each other ordinary advice without fear of government retribution.

 

The Legal Challenge: One of the Most Important Unanswered Questions in Free Speech Law

North Carolina’s purported authority to scrub the Internet of one-on-one nutritional advice, whether for free or for compensation, is rooted in a nonbinding 1985 opinion by three U.S. Supreme Court justices in Lowe v. SEC.[1]  The opinion in Lowe suggested that the First Amendment simply does not apply to advice from one person to another in contexts where professional expertise is the norm and one person is asking the other to exercise judgment for him or her.  Classic examples would be the regulation of what doctors may say to patients and what lawyers may say to clients.

This case raises one of the most important unanswered questions in First Amendment law:  When does occupational licensing trump free speech?  The Supreme Court has never cited the Lowe concurrence, and has grown significantly more protective of speech, including commercial and political speech, since then.  Lower courts, on the other hand, have relied on Lowe, ruling last year, for example, that the aesthetic opinions of a paid interior designer are not protected speech.[2]

The lower courts’ expulsion of valuable speech from the First Amendment is in irreconcilable conflict with Supreme Court authority ruling that only a few categories of historically unprotected speech—such as child pornography and defamation—are outside the First Amendment.  There is no basis in the law for asserting that advice between laypeople on specialized topics is not protected speech.

The danger posed by excluding advice from the First Amendment will only grow as more and more occupations become subject to government licensure. As licensing expands—one in three workers now needs a government-issued license; it was one in twenty in the 1950s[3]—so too will opportunities for censorship.  The growth of licensing coincides with the growth of the Internet as an unprecedented source of information and advice for ordinary people.  Millions of Americans use blogs, social media, and other online venues to seek and receive advice about topics such as parenting, pregnancy, marriage, and other serious issues.  Under the State Board’s logic, anyone who responds to a mother seeking specific advice about her teething baby is engaged in the unlicensed practice of pediatric medicine.

If ordinary advice is outside the First Amendment and may be censored at the government’s discretion, then a vast amount of valuable speech is at risk. To fight this dangerous trend, IJ will argue that occupational-licensing laws should not be used to shut down dialogue and protect traditional medical hierarchies.  There is no general First Amendment exception for occupational licensing, and paying someone for ordinary advice doesn’t strip that advice of First Amendment protection.

 

The Plaintiff

Steve Cooksey is a resident of Stanley, North Carolina, which is just outside Charlotte.

 

The Defendants

The Defendants are the members of the North Carolina Board of Dietetics/Nutrition, all of whom are sued in their official capacities.

 

Diabetes and Obesity: A Problem for Steve and America

Steve Cooksey is one of the 26 million Americans who suffer from diabetes, and 79 million more are considered pre-diabetic.[4]  800,000 North Carolinians are diabetic.  Americans spend hundreds of billions of dollars every year treating diabetes, and that amount is going to rise dramatically as more and more pre-diabetics become diabetic.[5]

Diabetes can be a devastating disease.  On average, diabetics live ten fewer years than non-diabetics.[6]  Diabetes is strongly associated with increased rates of heart and kidney disease, as well as high blood pressure.[7]  Also, because excessive blood sugar can destroy nerve endings in the eyes and extremities, diabetes is a leading cause of blindness and amputation.[8]

The rate of adult-onset diabetes— also called Type II diabetes— has exploded in the last 30 years in lockstep with the explosion in obesity rates.  According to statistics from the U.S. Centers for Disease Control, in 1985, of the 21 states for which obesity data is available, 13 states had an obesity-level of less than 10 percent.[9]  Of the remaining eight states, all had an obesity-level of between 10 and 14 percent.[10]  By 2010, when obesity data was available for all states, 38 states had an obesity level above 25 percent and no state was below 20 percent.[11]  During this period, the rate of diagnosed diabetes nearly tripled, from 2.5 percent of the population to 6.9.[12]

Steve’s diagnosis followed the classic pattern for adult-onset diabetes.  He was obese, sedentary, subsisted on junk food, and drank lots of sugary beverages.  In the 18 months leading up to his diagnosis in February 2009, he was constantly sick.  He had trouble sleeping, was lethargic, and even had asthmatic episodes.  During that period, he had been prescribed at least 13 medications.  In December 2008, he caught a cold that he could not shake.  He was ill throughout January and February.

Things reached a breaking point on Sunday, February 15, 2009, when Steve’s wife took him to an urgent care clinic because he was so sick.  The clinic realized that Steve was on the brink of a diabetic coma and called an ambulance to transport him to the hospital, fearful that he might die if his wife took him by car.

Steve was admitted to intensive care with sky-high blood-sugar levels.  When he was discharged four days later, he was told that he would be dependent on drugs and insulin for life.  He was home alone the day after discharge, sobbing over what his life and health had become.  It was in that moment that Steve resolved to change his life and begin living a healthy lifestyle.

 

The Conventional Wisdom on Dietary Care for Diabetics

When Steve was in the hospital following his brush with death, a North Carolina-licensed dietitian visited him to explain that he could eat whatever he wanted as long as he monitored his blood sugar and adhered to his regimen of insulin and diabetes drugs.  She told him that, ideally, he ought to eat a high-carbohydrate/low-fat diet and consume no more than 2,200 calories each day.  He received the same advice a few days later when another North Carolina-licensed dietitian visited him at home.

The dietitians’ advice was consistent with the conventional wisdom regarding dietary care for diabetics.  The primary treatment for Type II diabetics is a high-carbohydrate/low-fat diet and exercise.  When those are not enough to control blood sugar, there are prescription drugs to help.  According to the American Diabetes Association, Type II diabetes does not require a diabetic to give up the foods he or she loves. The basic ADA diet has two components: (1) calorie restriction; and (2) dietary-fat restriction.[13]  The premise behind this approach is that body fat accumulates when the body consumes more calories than it burns.  When a person ingests fewer calories than are expended, the body must burn stored fat, causing weight loss.  Dietary-fat restriction is thought to be important because fat is calorically dense, meaning that cutting dietary fat cuts more calories than cutting proteins or carbohydrates.

 

The Alternative Hypothesis and Paleolithic Eating

Steve was determined to turn his life around.  He began to read books about diabetes and do research on the Internet.  The more he read, however, the more skeptical he became of using a conventional high-carbohydrate/low-fat diet to control his blood sugar because carbohydrates most directly raise blood sugar.

He decided to try something different.  He drastically reduced carbohydrates and increased his consumption of protein and fat.  Within a month, his blood-sugar levels had normalized and he discontinued his insulin and other diabetes drugs.  At his next follow-up appointment, Steve’s doctor acknowledged Steve’s results and told him to continue.

Steve eventually transitioned to a paleolithic diet, meaning that he eats only foods available to pre-agricultural humans, such as meats, fish, fats, nuts, vegetables and fruit.  He strictly minimizes agricultural grains and starches, sugar and junk food.  Coupled with running, jumping, and whole-body exercises, Steve is lean, fit and energized, free of drugs and doctors, and an advocate for paleolithic eating.

Steve’s paleolithic diet is one manifestation of what has come to be known as the “Alternative Hypothesis.”  The Alternative Hypothesis, to which Steve and a growing scientific minority subscribe, is that the conventional high-carbohydrate/low-fat diet gets the equation exactly backwards.  They believe that obesity and diabetes are ultimately the result of a hormonal imbalance, not a caloric one.[14]  As George Cahill, a former professor of medicine at Harvard Medical School, put it, “carbohydrate is driving insulin is driving fat.”[15]  In this view, high-carb eating overproduces insulin, which spurs the accumulation of body fat and plays a critical role in obesity, diabetes, heart disease and other chronic conditions.

 

Free Speech and Internet Freedom: North Carolina Censors Steve’s Dear Abby-Style Advice Column, His Communications with Friends and Readers, and Shuts Down His Life-Coaching Business

As part of his advocacy for paleolithic eating, Steve started a free blog in January 2010 called Diabetes Warrior.[16]  Steve doesn’t purport to be a dietitian or doctor, and no reasonable person would believe his advice is comparable to professional medical judgment.  He is just a passionate advocate who wants to share his beliefs with others and help them achieve the kind of personal transformation that he’s experienced.

Steve has thousands of regular readers and has become personal friends with many of them.  He has acted as a mentor to many of these readers, corresponding with them via email and talking with them on the phone about diet.  His Internet friends and readers live all over the United States and many live in other countries.  Steve has received moving testimonials from readers who credit Steve’s advice, mentorship and emotional support as being essential to their own success in losing weight and controlling diabetes.  Steve got such good feedback from those he mentored that he decided to begin offering a life-coaching service similar to that offered by elite athletic trainers, but aimed at people who were struggling to adopt a paleolithic diet like Steve’s.  His most expensive coaching service cost $197 per month and involved eight emails and 20 fifteen-minute phone calls.

In 2011, Steve thought of a new way to share his knowledge, opinions and advice.  He began a Dear Abby-style advice column on his blog about his paleolithic diet and exercise.

But not long after Steve started his Dear Abby column, he discovered that, according to the North Carolina Board of Dietetics/Nutrition, giving free dietary advice, being a personal dietary mentor to friends and readers, and asking a modest fee to give that exact same advice are all crimes.  Because Steve answers specific questions from readers and friends, rather than simply providing general information, the government contends he is practicing unlicensed, and thus criminal, “nutritional counseling.”

Steve came to the attention of the State Board when he attended a nutritional seminar for diabetics at a local church on January 12, 2012.  The person running the seminar, who was the director of diabetic services at a local hospital, expressed the view that a high-carbohydrate/low-fat diet is best for diabetics.  Steve expressed his opinion that the paleolithic diet is best.  Others expressed different views.  The next day, someone filed a complaint with the State Board against Steve for engaging in “nutritional counseling” without a license.

On January 27, 2012, the State Board emailed Steve a 19-page excerpt from his blog, including his Dear Abby-style advice column, in which the State Board had gone through Steve’s writings with a red pen, indicating on a line-by-line basis what he may and may not say.[17]  The following are examples of statements that the State Board contends constitute the unlicensed practice of dietetics:

    • “Honestly, he needs to get off the ‘carb up and shoot up’ treatment plan”;
    • “Your friend must first and foremost obtain and maintain normal blood sugars”;
    • “maintaining NORMAL blood sugars will allow his body to heal”;
    • “Cut the carbs to 30 g or less of TOTAL carbs per day and eating meats and veggies will help them.”
    • “I do suggest that your friend eat as I do and exercise as best they can.”

Not only did the State Board ban Steve’s Dear Abby-style advice column, it asserted that he could not act as an uncompensated mentor to friends and readers.  The State Board identified statements made by Steve’s friends and readers, thanking him for his mentorship and support, as evidence that Steve had engaged in unlicensed “nutritional counseling.”  The State Board also banned Steve from running his life-coaching service.

The State Board specifically asserts the power to police the Internet for unlicensed nutritional counseling.  According to the State Board, it is illegal for ordinary people to share personal diet advice on Facebook, Twitter, Internet forums or other popular social media.

Steve is especially unsettled by this.  In using the Internet to share his opinions and experiences, Steve is contributing to the worldwide dialogue on diet and health that was such an important source of knowledge and inspiration when he was diagnosed with diabetes in 2009.  Steve sees the Internet as a way to expand the circle of the personal advice about diet that family, friends and coworkers share all the time.  He is part of a nationwide movement of people using the Internet to take responsibility for their own health.

 

The Litigation Team

The litigation team consists of Institute for Justice Senior Attorney Jeff Rowes and Attorney Paul Sherman.  They will be assisted by local counsel Robert Shaw of Williams Mullen in Raleigh, N.C.

The Institute for Justice is the nation’s leading legal advocate defending First Amendment rights and economic liberty.  The Institute has challenged efforts to use occupational-licensing laws to silence speech by For Sale By Owner websites in California and New Hampshire; interior designers in Connecticut, Florida, New Mexico and Texas; and tour guides in New Orleans, Philadelphia and Washington, D.C.

 


[1] 472 U.S. 181 (1985).

[2] Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011).

[3] Dr. Dick Carpenter and Lisa Knepper, Institute for Justice, License to Work: A National Study of Burdens from Occupational Licensing (May 2012).  Available at: http://ij.org/licensetowork

[4] American Diabetes Association, 2011 National Diabetes Fact Sheet, January 26, 2011.  Available at: http://www.diabetes.org/diabetes-basics/diabetes-statistics/.

[5] American Diabetes Association, 2011 National Diabetes Fact Sheet, January 26, 2011.  Available at: http://www.diabetes.org/diabetes-basics/diabetes-statistics/.

[6] Williams Textbook of Endocrinology. (12th ed.). Philadelphia: Elsevier/Saunders. pp. 1371–1435.  ISBN 978-1-4377-0324-5.

[7] Williams Textbook of Endocrinology. (12th ed.). Philadelphia: Elsevier/Saunders. pp. 1371–1435.  ISBN 978-1-4377-0324-5.

[8] Ripsin CM, Kang H, Urban RJ (January 2009). “Management of blood glucose in Type II diabetes mellitus”. Am Fam Physician 79 (1): 29–36. PMID 19145963.

[9] Center for Disease Control and Prevention, Percent of Obese in U.S. Adults, Adult Obesity Facts.  Available at: http://www.cdc.gov/obesity/data/adult.html

[10] Center for Disease Control and Prevention, Percent of Obese in U.S. Adults, Adult Obesity Facts.  Available at: http://www.cdc.gov/obesity/data/adult.html

[11] Center for Disease Control and Prevention, Percent of Obese in U.S. Adults, Adult Obesity Facts.  Available at: http://www.cdc.gov/obesity/data/adult.html

[12]Number (in Millions) of Civilian, Noninstitutionalized Persons with Diagnosed Diabetes, United States, 1980–2010, Center for Disease Control and Prevention.  Available at: http://www.cdc.gov/diabetes/statistics/prev/national/figpersons.htm

[13] The Best Food Choices, the American Diebetes Association.  Available at: http://www.diabetes.org/food-and-fitness/fitness/weight-loss/food-choices/the-best-food-choices/

[14] See, e.g., Gary Taubes, Good Calories, Bad Calories: Fat, Carbs, and the Controversial Science of Diet and Health (2008).

[15] Gary Taubes, supra n. at 393.

[16] www.Diabetes-Warrior.net.


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