Paleo Diet Lawsuit Dismissed By Court in Blow to Free Expression

Bad news in an important Institute for Justice-launched lawsuit defending the right of free speech on the Internet about matters of diet and nutrition.

A state licensing board in North Carolina tried to suppress a blogger who talked up and advised people on the health benefits of the "paleo" diet (that is, eating as we think cavement ate, no grains or processed foods), telling him directly what he could or could not say about his belief that the high-meat, low-carb diet helped him with his diabetes. The case was dismissed by a federal court late last week.

From the Institute for Justice's press release:

On Friday, October 5, a federal court dismissed diabetic blogger Steve Cooksey's free speech lawsuit on standing grounds.   The case, which has received significant national media attention, seeks to answer one of the most important unresolved questions in First Amendment law:  Does the government's power to license occupations trump free speech?

"In America, citizens don't have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech," said Institute for Justice Senior Attorney Jeff Rowes.  "When the executive director of a government agency goes through your writing with a red pen and tells you on a line-by-line basis what you can and can't say, that is censorship and the courts can hear that case."

In December 2011, Steve Cooksey from Stanley, N.C., started a Dear Abby-style advice column on his diet blog to answer readers' questions.  In January 2012, 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. 

The State Board also told Steve that his private emails and telephone calls with friends and readers were illegal.   Violating the North Carolina licensing law can lead to fines, court orders to be silent, and even jail.  

Steve's case was dismissed October 5 on the grounds that Steve did not suffer an injury that gives him a basis to challenge the government's actions.   The Institute for Justice plans to appeal and will argue that the government cannot single people out, tell them that their speech is illegal, and then plead in court that it has not chilled their speech…..

"We will keep up this fight until everyone in North Carolina is free to talk about important topics like diet without facing government censorship," said IJ client Steve Cooksey. "We cannot let government licensing boards censor the Internet and chill our speech."

This sort of insanely stringent attitude about "standing"–roughly that you have no right to challenge a law damaging your rights until you've actually been arrested or fined–was also at play in the history-making Second Amendment challenge Heller v. D.C., which I wrote about in my 2008 book Gun Control on Trial.

In that case five of six plaintiffs were kicked off a case trying to vindicate their ability to own a weapon in D.C. The only reason any of the plaintiffs survived is that one of them, Dick Heller, had had an attempt to file for a permit to own a weapon denied. The Court recognized a permit denial as an injury; having a core constitutional right denied, not so much.

Now, it is certainly a great thing that as far as I know there is no such thing as a "blogging permit" or permit of any sort to practice the First Amendment, but it means in this case there is no simple loophole to get around this frankly nuts standing decision.

However, IJ intends to appeal and is willing to fight this out, as they say, all the way to the Supreme Court, which really ought to weigh in on when occupational licensing trumps free speech. Word to my Justices: the answer is "never."

IJ's fact page about the case.

My short piece about the suit in the October issue of Reason, and my longer one about it when it was filed back in May.

Bonus Reason.tv: a talk with maverick diet science writer Gary Taubes on why so many libertarians love the paleo diet, among other matters of science, diet, and health, and how the government's overt love for carbs is bad for the nation: