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Paleo Blogger Can Fight North Carolina in Free Speech Case

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By William Peacock, Esq. on July 03, 2013 4:22 PM

Steve Cooksey is a blogger. He also almost died. Many years ago, he was rushed to a hospital in a diabetic coma. Fortunately, he turned his lifestyle, and his medical condition, around by making a significant change to his diet: he went Paleo.

The Paleolithic Diet attempts to emulate what our cavemen ancestors would have eaten — meat, fats, and nuts, while abstaining from large amounts of grains, carbohydrates, and sugars. Though this diet went against the advice of the dieticians that advised him post-coma, it worked for Steve, and combined with exercise, enabled him to drop 78 pounds and stop taking medication for Type II Diabetes.

 

Seeking to help other similarly-situated individuals, Steve started a blog about his adventurous diet, along with an advice column, and later, personalized dietary advice services. Unfortunately for Steve, North Carolina makes it a misdemeanor to provide unlicensed dietetics advice.

Though he was not prosecuted, the regulatory board did contact him and "advised" him that certain content, especially anything that could be seen as advice, violated the statute and could be removed by a court-ordered injunction. He complied voluntarily and took down the objectionable content.

He then filed a First Amendment lawsuit, which was subsequently dismissed by the lower court for lack of standing, as no "official" action had been taken by the state. 

The Fourth Circuit, however, reversed, as there is a more lenient standard for standing in First Amendment cases. After all, we, or more specifically, the Supreme Court, hates it when mere threats of action have a chilling effect on speech:

"Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged."

The Fourth Circuit then goes on to address each element of standing:

Injury-in-Fact

The standard here is whether a "person of ordinary firmness" would be deterred from speaking freely. Steve received a call from the head of a state agency, with threats of an injunction, and multiple calls, letters, and emails instructing him on what speech was allowable. The agency also warned him that they "reserve[d] the right to continue monitoring the situation." Threats and monitoring would deter any reasonable person.

Causation

This is simple "traceable" causation. The state's actions caused him to self-censor to avoid legal repercussions.

Redressability

This is also quite simple. Should Steve win the lawsuit, his injuries would be fully redressed. He would be able to restore the advice column and other censored sections of his website.

With standing in place, and the Fourth Circuit's related finding of ripeness for adjudication, the court reversed and remanded the case for further proceedings.

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