Paleo Blogger Moves Forward In IJ’s Free Speech Victory

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The First Amendment was specifically written to protect unlicensed speech. Hopefully North Carolina will recognize this, as the Institute for Justice continues to gain wins for their paleo blogger case.

In my experience, those who are on and who cover the paleo diet frequently question “common knowledge,” exert their own freedom of choice, and put weight into their own values, much like, and often in tandem with, the libertarian community. They don’t need the government to step in to tell them how to eat, because frankly they think the government is wrong about a whole lot of stuff, especially nutrition.

Eating paleo can be more confusing than it seems. If you’re trying to lose weight, can you eat agave? High-glycemic fruits like bananas? What about whey-based protein drinks? Cavemen certainly didn’t have that. How much wine is okay? What about corn-fed beef?

With all these questions, there is a clear market call for people well-versed in the paleo diet to share their experiences, and many have. There are hundreds, if not thousands, of blogs exploring the “caveman diet,” from nutritionists, like Loren Cordain, to the everyday dieter.

Enter Steve Cooksey. Cooksey, who once had serious medical problems including Type II diabetes, turned to “the caveman diet” to try to remedy his ailments. The blog started as a guide to his weight loss journey, but as he became healthier and more attuned to the diet’s nuances, he started giving free advice and responding to readers’ emails about how to successfully maneuver eating paleo in the modern world. He even began running a consulting service for his insight.

Because Cooksey wasn’t a certified dietician or nutritionist, the North Carolina Board of Dietetics/Nutrition charged 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.” He had two options: get licensed as a nutritionist, which involved “getting a PhD in nutrition, or a medical degree, or a bachelor’s degree in nutrition and then pass an examination after completing a 900-hour clinical internship,” or shut down his blog.

Then, the Institute for Justice stepped in. They advocate that Cooksey is protected under his First Amendment rights, and even made this cool video to explain why:

I am pleased to report that yesterday, this case saw a big win.

IJ reports:

This morning [June 27], in a big win for free speech, the 4th U.S. Circuit Court of Appeals held that diabetic blogger Steve Cooksey’s First Amendment lawsuit against the North Carolina Board of Dietetics/Nutrition may go forward… The decision reverses a previous ruling by a federal district judge that had dismissed Cooksey’s case, reasoning that advice is not protected speech and hence Cooksey had suffered no injury to his First Amendment rights.

Even retired U.S. Supreme Court Justice Sandra Day O’Connor, who was on the appellate panel, commented on the absurdity of the case. She stated that she had “no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.” In other words, clearly Cooksey’s rights are being violated.

Ladies and gentlemen, this case has huge implications for freedom of speech, occupational licensing, and the bloggerverse as we know it. Should Cooksey’s case continue to succeed, it will set a precedent for anyone else who gives online advice—think personal finance, parenting, personal aesthetics, and exercise blogs. Enforcing licensing restrictions on all bloggers would be pretty difficult, especially if it’s somehow enforced state-by-state, with content viewed internationally.

IJ Attorney Paul Sherman said, “Steve’s case raises one of the most important unanswered questions in First Amendment law: Can occupational-licensing laws trump free speech? Today’s ruling means that we are finally going to get an answer to that question.” In my opinion, to rule against Cooksey would be to rule the First Amendment invalid. As Grok would say, “Free speech good. Big government bad. Go IJ.”

  • Sheva Bree

    Just curious. On his blog and his consulting, does he state that he is not an expert? That he is not licensed and that any information he gives is just advice and does not constitute any sort of educated opinion? Well other than ‘it worked for me, wanna try it too?’

    I do not know anything about the paleo community and what I’ve read *shrug* like any other diet/lifestyle what works for one may or may not work for another. I just know from other communities that there are people who are able to take advice from non-experts and apply it with common sense and there are others who will use the ‘advice’ like a bible and follow it religiously even to their own detriment. Take the parenting advice author Gary Ezzo. There are parents who will defend this man and the books he’s written because it worked for them. But then there are the parents who read the books, followed the advice, and their children were damaged because of that advice.

    You may be asking WTF does this have to do with a paleo blogger? Well what if this blogger decides to write a book? What if people read his book and take his advice to heart without consulting with a medical professional before going on a new diet? What happens if people get hurt because they followed the advice of a non-professional What are the consequences? There is a lot of information on the dangers of Gary Ezzo’s writings available on http://www.ezzo.info/ but people still buy his books and follow his advice. Once the information is published its hard to take it back.

    Professional licensing requirements are not perfect. Some may even go a little overboard but there are reasons we need people to have some sort of education in their field of work. Hiring an unlicensed professional may be cheaper but if they fuck up it costs you more in the long run. Taking advice from a blogger may be free but when it comes to your health is it really worth it?

    • http://rachelburger.com/ Rachel Burger

      Hi Sheva, thanks for the reply.

      On his blog, he states,

      I am not a doctor, dietitian nor nutritionist… in fact I have no medical training of any kind. If I can figure this out so should they… if it wasn’t for their…

      A) Intellectual Laziness

      B) Willful ignorance

      C) Greed

      D) All of the Above :)

      My bet is that those who seek his advice are already sold on the paleo lifestyle, which has a huge community and following.

      While I think that Ezzo’s parenting recommendations are not the best practice (to put it mildly), I don’t think we should be turning to the government to prepare the correct guidelines to raising children and enforcing them. The American Academy of Pediatrics has already condoned Ezzo’s works, and from a quick Google search, it seems clear that there is a movement in the market to stop people from reading Ezzo’s material (just type in “Ezzo” or “Ezzo parenting” to see what I mean). This is how the free market is supposed to work. I think that sites like Yelp etc only make it work better.

      I understand the sentiment for professional licensing. Really, I do. But I think that a majority of the hoops that people have to jump through a really just methods of creating barriers to entry for a protected market. As for:
      Taking advice from a blogger may be free but when it comes to your health is it really worth it?,”
      I leave that up to the reader of the blog. They’ve obviously made a conscientious decision to investigate their nutrition in the first place. Allow them to choose what’s best for them, and not the government.