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.”