A North Carolina diabetic blogger’s lawsuit may help answer the question of when occupational licensing laws can be used to restrict speech.
The blogger, Steve Cooksey, runs Diabetes Warrior, which answers questions sent in my readers about how to manage their disease.
It’s not surprising that Cooksey has raised eyebrows. His advice is decidedly anti-establishment.
“[Y]ou know that we have been lied to by Big Food, Big Pharma and the medical industry,” he tells his readers, “including doctors, diabetes educators, dietitians and nutritionists.”
Cooksey’s slogan is, “Diabetes Management from a Paleolithic Perspective.” Instead of insulin treatment, Cooksey advocates a “primal” diet – one patterned after what humans from the Stone Age would have eaten. His chief claim to expertise on the matter is his own experience as a diabetic. He blogs, “I have not taken a drug since March 2009. I have weaned off drugs and insulin completely… and I have normal blood sugar.”
A month after starting his blog in 2011, the North Carolina Board of Dietetics/Nutrition informed him he was engaging in the unlicensed practice of dietetics. As his public-interest law firm, The Institute for Justice, explains it:
[T]he 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.
So Cooksey sued to vindicate a free-speech right to blog as he sees fit.
He was dealt an early blow when a federal district court dismissed his case for lack of an injury. But the case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. Cooksey quotes his attorney, Jeff Rowes, as saying:
Under the First Amendment, a citizen is injured by the mere existence of a statute that regulates speech. And there are literally dozens of Supreme Court and federal appellate cases saying that you have standing when the government actually tells you that your speech is illegal. The courts have a very relaxed standard for bringing a First Amendment case because the right to free speech is considered to be so important.
Once the court of appeals recognizes that this is a First Amendment case, we expect it to rule that we have standing and send the case back to the district court to be litigated as a free-speech case.
I think occupational licensing, in general, is okay. It is sometimes badly needed to protect consumers from rank incompetence. But such statutes can conflict with free speech. And in this case, it seems to me that the North Carolina licensing authority has indeed gone beyond regulating a profession and has entered into the business of censorship.
(Another case along the same lines is that of Horace Hunter, an attorney in Virginia.)