Paleo Diet

Paleo Diet Lawsuit Dismissed By Court in Blow to Free Expression

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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:

NEXT: Unemployment Claims Fall + Prices Rise + Housing "Recovers" = Obama's October Surprise?

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  1. The standing issue is bullshit. An explicit threat of coercion from a state agency IS coercion. I don’t see how a judge could rule otherwise.

    1. Because the judge is an employee of the state.

      1. The judge took an oath to defend whatever the other two branches of government do.

        No checks, no balances. Just a rubber stamp.

        1. Yep, remember the purpose of the judiciary is state building, not justice or defending liberty.

          http://www.theatlantic.com/nat…..ct/259186/

    2. Yeah, I’m confused. Explicit statement that your actions are illegal doesn’t give you standing because the state agent magnanimously didn’t take harmful action against you this time?

      1. Yup. That’s the doctrine.

        There can be a law that says that, if you skip down the sidewalk, you get life in prison. The only way to challenge the law is to skip down the sidewalk, be convicted and sentenced, and then appeal, praying that the Supreme Court will hear the case so you don’t spend your life in prison.

        That’s how “standing” works. It’s complete bullshit.

    3. It does seem incorrect on the surface, as courts rule against laws on First Amendment grounds based on them “chilling” the expression of speech.

    4. Sorry, but I agree with stringent standing requirements. In order for a court to take a look at a matter, there should be an injury. Here, there is none. If the blogger wants to take the fine, which should be small and to which I would contribute some cash to offset, then that’s what he should do.

      1. Injury doesnt only occur in dollars.

          1. In this case injury occurred as soon as they sent him the message.

      2. When a gubmint agency exercises prior restraint, you’ve been damaged.

        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.

        1. Yes, but the question is “or else…what?”

          It sounds as if the government employee was preaching compliance. “Alright, here is what you can and cannot do and remain compliant with the licensure laws. Failure to remain compliant can result in X, Y, Z penalties”

          Government agencies do this all the time. If the individual thinks that said compliance violates his right, he should continue on, take the fine, and then show his injury.

          1. Look at NYT V. US on the Pentagon Papers. An injunction was issued, which is prior restraint, not a fine, which is analogous to this case. In case this is too fine a point, I’ll be succinct: being censored is an injury.

            And what RC said below about exceptions to the 1st Amendment.

            1. There was no injunction here. There isn’t even evidence of a threat.

              1. Preaching compliance is a threat. All compliance is backed up with a gun.

        2. Yes, but the question is “or else…what?”

          Practicing a licensed profession without a license is a crime.

          The or else is being arrested, tried, convicted, fined, and possibly jailed.

          The court’s fail here was concluding that the threat of being arrested, tried, convicted, fined, and possibly jailed is not “prior restraint”.

          It is interesting that the “or else” of violating an injunction is, you guessed it, being arrested, tried, convicted, fined, and possibly jailed.

          Apparently, the title of the document which informs you to obey or be arrested, tried, convicted, fined, and possibly jailed is what controls whether you have standing.

          1. Even further, apparently Randian thinks that threats of violence are perfectly acceptable speech.

            Problem is the courts and legal system don’t agree with him.

      3. In First Amendment jurisprudence? Any government action that can chill the free exercise of protected speech can be found to be unconstitutional. That’s all you need for standing.

        1. Not that courts, including the Supreme Court, haven’t ruled this way before. But that’s because most decisions are results-based.

        2. Not for commercial speech.

          Anyway, here’s the magistrate’s Order of Dismissal, which you can read. As I suspected, the grounds were basically ‘you incurred no injury because the Board informally advised you how to comply, without making threats, and you complied.’

          1. Seriously? A gubmint agency tells you what you can and can’t say and there is no threat implicit in that statement? They’re just being helpfule?

            When a mafioso tells you “What a shame if something were to happen to this bidness,” he’s just being concerned for your overall well being. Right?

            1. There are plenty of speech cases where there was no injury, just the threat of the suppression of speech. Laws have been tossed for being facially invalid–their very words are unconstitutional–without the law actually being enforced.

              I can’t remember for sure, but wasn’t the CDA struck down before it had really been enforced?

            2. Seriously? A gubmint agency tells you what you can and can’t say and there is no threat implicit in that statement? They’re just being helpfule?

              As much as I despite licensure and government, the answer to that question is “yes”. An agency can look at activity and say “look just want to give you a heads-up that this activity is noncompliant with licensure laws. If you want to remain compliant, here is what we recommend.”

              You can ignore their recommendations and then challenge the injury you may receive.

              1. The recommendation comes with an implied threat, that if you dont comply we will fine/arrest.

                1. That isn’t what the court found and that wasn’t presented as evidence. If you have something contrary, please let me know.

                  Understand that what you are basically saying is that any time any agency renders an advisory opinion, it is threatening the advised.

                  1. Understand that what you are basically saying is that any time any agency renders an advisory opinion, it is threatening the advised.

                    Yes, and?

                    1. Well I just don’t happen to think that’s true.

                    2. Well I just don’t happen to think that’s true.

                      As somebody who does regulatory compliance for a living and deals with agencies all the time, I can assure you:

                      Yes, it is true. Not only that, but because you disregarded their purely helpful and in no way threatening “advice”, you are subject to additional penalties.

                    3. RC, I do regulatory compliance as well. Some agencies are like that, and some are not. The mercurial nature of ‘the government’ is the strongest criticism we can levy, not that the whole rodeo is filled with blackguards out to get us.

                      It’s the uncertainty that is the problem.

                    4. Randian, how often do you tell your clients they should just go right ahead and disregard advice from an agency because there is no downside whatsoever to doing so?

                      Yeah, some agencies are more aggressive than others, but that doesn’t mean disregarding their “advice” carries no risk.

                    5. This reminds me of some fights I had with state regulators when representing a finance company (which was state regulated). They’d tell us to do something, which they had no legal authority to do, and I’d ask them for the blackletter support for their command. Some would back off. But the ones that wouldn’t could win, because we’d cave to avoid the revenge that would come through other bullshit regulatory actions.

                      It’s truly naive to think that “unofficial” actions aren’t used to skirt the legal limits of administrative agency authority. It’s more common than not. Try dealing with the FTC sometime.

                      All government activities have to fall within what’s left of the Constitution (and/or state constitutions).

                    6. t’s truly naive to think that “unofficial” actions aren’t used to skirt the legal limits of administrative agency authority. It’s more common than not. Try dealing with the FTC sometime.

                      Kinda how political opponents of presidents suddenly find themselves in surprise IRS audits.

                    7. They’d tell us to do something, which they had no legal authority to do, and I’d ask them for the blackletter support for their command.

                      One of my favorite tactics.

                      But, yeah, when they don’t back off or give you some bafflegab about “intent” or “policy”, you’re playing with fire to just blow them off.

                  2. Understand that what you are basically saying is that any time any agency renders an advisory opinion, it is threatening the advised.

                    Let me be very clear: THAT IS EXACTLY WHAT IM SAYING.

                    Nothing wrong with that, when the threat is for legitimate government action. “We advise that sneaking into a house and stealing stuff could be construed as burglary, which could lead to arrest and the possibility of fines and/or imprisonment.”

                    Both advice and a threat. And perfectly fine on the governments part.

                  3. “Understand that what you are basically saying is that any time any agency renders an advisory opinion, it is threatening the advised.”

                    Of course. That’s self-evident, since the purpose of regulatory agencies is to enforce compliance with regulations, and not to spark conversation among the advised with their witty repartee.

                    The agency has no legitimate power to do what it’s doing. No more than you or I would have that power.

              2. “look just want to give you a heads-up that this activity is noncompliant with licensure laws. If you want to remain compliant, here is what we recommend.”

                If the state is informing you that you’re not in compliance with the law, isn’t that an implicit threat of arrest or fine?

                Usually, when a state official tells me that I’m not in compliance with the law, I assume a certain outcome if I give him or her the middle finger and continue on my way.

          2. The different treatment of commercial speech shouldn’t have any effect on standing. That’s more about whether the government can regulate your speech at all. Like I said below, I’m surprised the decision wasn’t based on him making unsubstantiated claims or something along those lines.

            There might be some question as to whether this is commercial speech, too, which might explain the decision.

          3. without making threats

            bullshit.

            Informal advice from the state IS a threat.

            1. I haven’t read any of this, but another angle could be that the redlining was an attempt to compel speech. It sounds like that would be a little indirect here, as the blogger could skip the whole thing, but government telling you how to say something (if it doesn’t have a legal basis for doing so, which is a huge hole in First Amendment jurisprudence) is not kosher.

              1. I honestly think my response to the director would have been, “Thank you for your input. I hope you have a very nice day fucking yourself.”

                Instant standing!

            2. Informal advice from the state IS a threat.

      4. The existence of a law which restricts speech is injurious to everyone.

        1. That may be true in some philosophical sense, but the question is whether it should be true in a legal sense. The principles of federalism and local control pretty much requires that there be an actual injury, otherwise an airplane full of Greens from NYC could fly to coal country and snare the works for years.

          1. the question is whether it should be true in a legal sense. The principles of federalism and local control pretty much requires that there be an actual injury

            Outlawing constitutional behavior is such an injury, as the law against it is backed by coercive force.

          2. Suppose we had a regulation which forbid Greens from complaining about coal. Would that be ok?

      5. The injury occurred when his speech was deemed unlawful. Are you suggesting that courts should demand that people break laws before their constitutionality has been established?

      6. I feel that we should work to change the legal system so that there is no standing requirement when bringing action against the government.

  2. The standing stipulation has also stymied several lawsuits against the TSA over the invasiveness of its searches.

    1. I was wondering how long it would take someone to notice that. Glad to see that I wasn’t alone.

  3. Does the government’s power to license occupations trump free speech?

    Duh. Of course. Its right there in the list of exceptions, after the one for commercial speech and before the one for obscenity.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except for commercial speech, speech subject to the authority of licensing agencies, and obscenity; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    1. You missed a clause…

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except for commercial speech, speech subject to the authority of licensing agencies, and obscenity; or the right of the people peaceably to assemble in designated assembly or free speech zones and only after acquiring the proper license from all relevant government agencies, and to petition the Government for a redress of grievances.”

      1. Oh wait, I missed one too…

        “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except for commercial speech, speech subject to the authority of licensing agencies, and obscenity; or the right of the people peaceably to assemble in designated assembly or free speech zones and only after acquiring the proper license from all relevant government agencies, and to petition the Government for a redress of grievances so long as that petition is filed after you have been jailed or harmed by the state.”

        1. funny and silly but you just gave me an idea. How cool would it be to write the constitution AS IT EXISTS now? Then (not that this would help) people could stare and compare. Just think of it, the damn thing would be 7000 pages long.

          1. I was in St Maarten right after they became their own country (but still with the Dutch royal family as Head of State). The constitution was published in the paper. It was…interesting.

            Lots of “You have this ABSOLUTE RIGHT unless the government says otherwise.”

            1. My experience with Sint Martin/Saint Martin is as follows: Got off boat, cab to french side, sit on beach eat, drink, watch fat ugly naked people….
              Compare that to my experience with the US Island of St Thomas, Magens bay: Walk up to beach, LARGE sign, over 35 rules listed, no alcohol, no nudity, no, no, no….
              So, I ask myself at the time “Self? Which is the more free? Socialist France of the US?”

              1. I was talking about the Dutch side.

                The French side of the island is actually in France. In the same way that Hawaii is in the USA.

                The Dutch side is to Holland as Canada is to the UK.

                They have made an effort to keep the nude people contained to the nude section of the beach. At least during peak hours. Im guessing the Disney boat complained.

                1. Still, though, I was on both sides of the island during my vacation, and Cliche is right – the French side is probably freer than the United States.

                2. The dutch side is good for cheap scotch and cuban cigars knock offs…plus rolexes.

    2. You forgot the section at the end prohibiting racist, sexist (against women), and homophobic speech. Plus you can’t criticize the President if he’s Black, I learnt that at scool.

      1. And the section that declares Christianity to be an offensive religion, while all others deserve extra special protection.

    3. That’s why I was surprised by the standing ruling, as they could more easily get away with just saying it’s proper regulation of commercial speech or some other blather about unsubstantiated claims.

  4. 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.

    A threat of injury is not an injury in itself?

    I don’t get it.

    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

    That’s the bottom line. There is reasonable expectation of injury if the very State tells you that it’s going to throw your ass in jail if you don’t stop saying those things on the internet that only State-licensed people can say!

  5. Think about it. What profession currently requires a license but consists pretty much exclusively of giving someone your opinion. Something that a Judge or politician may have a personal stake in such that if this case were to be successful would effectively eliminate the states ability to even license the profession.

    Now, what profession could that be?

      1. Judges and politicians have a personal stake in that?

        1. Only if the doctors happen to be vampires.

  6. 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.

    I hope they do and I hope they win, because with a favorable decision, and as long as it is not some touchy-feely, convoluted decision like in Heller where the door was left open for “reasonable” restrictions on gun possession, then you can use the decision to fight almost all licensing laws as your job can be perfectly construed as “expressing yourself”, especially in the case of those make-believe jobs like marriage counselor, or horse whisperer.

    1. You just described why it won’t win.

      1. But I’m hoping they win. See? I’m hoping.

        1. As George Carlin said, “Fuck hope.”

  7. Look at all the fat fucks in this country stealing from us for their health care. Listening to morons on blogs or Faux News is probably part of what put them in this situation.

    Following fad diets like this shit or Atkins or whatever is part of the problem. It’s better to stop this kind of shit spreading among the less educated trapped in food deserts.

    1. Um, it’s eating what the government recommends that is making people fat. I’m not convinced that the Atkins or paleo type diets are ideal, but they sure as fuck aren’t what is making people fat. That has way more to do with activity level than diet anyway.

      1. Letting just any moron on the internet spread this kind of FUD isn’t helping people make proper choices.

        1. Re: Rationing Stinker,

          Letting just any moron on the internet spread this kind of FUD isn’t helping people make proper choices.

          Only the State knows what helps people make proper choices.

          Nothing outside the State.

          1. Not just the state, but you know, valid licensed nutritionists and other scientists.

            1. Not just the state, but you know, valid licensed nutritionists and other scientists.

              Licensed by the State. You just agreed with what he said.

            2. Re: Rationing Stinker,

              Not just the state, but you know, valid licensed nutritionists and other scientists.

              Yeah, I know – “valid” being euphemism for “?S?, lo que usted diga, se?or Presidente!”

            3. The State, which creates the standards by which Registered Dietitians are licensed, has been under the mistaken assumption since the late 1970s that eating cholesterol is what creates heart disease, and that we should be eating carbohydrates at every meal, 3-5 meals per day.

              All this despite the fact that the science has been clearly showing otherwise for at least 15 years, if not more.

              We just discovered three metabolic hormones we didn’t even know about when those standards were created (leptin, adiponectin, and irisin). And yet the program that RD licensees follow doesn’t reflect any of that science.

              In the fitness industry (of which I am a part), the advice of Registered Dietitians is a joke, because none of it works as advertised. In fact, if you wanted a diet to MAKE people gain fat and lose muscle over time, the USDA recommended diet would be it.

              1. I discovered all this, though much later in life than you did. I’m actually proud to be down to being merely “overweight” and maintaining that for 8 years.

                My wife (as a part of getting her medications more cheaply) and I went to a nearby major hospital to take a class from a dietician. To set the scene, my wife was easily the slimmest person in the room, and I was a distant second. Several people were so fat they couldn’t sit right.

                The dietician didn’t “consider fat to be a real food group” and insisted everyone needed carbohydrate as a major part of every meal “for energy.” I couldn’t stand it, patting my belly I replied “Don’t you think every person you’re talking to in this room is suffering from an excess of energy?”

        2. You’re right. I move that you should not be allowed to post anything on the internet.

        3. OK, this is definitely parody.

          1. Has to be.

          2. Food deserts put it over the top.

        4. Letting just any moron on the internet spread this kind of FUD isn’t helping people make proper choices.

          Rational Thinker: Rationally, what foods would we be best-evolved to eat?

          -A- Hunter-gatherers ate the fattiest meat first off their kills for 2 million years or so, plus high-fiber and green, leafy vegetables. A little fruit once a year for a few weeks maybe.

          -B- Farmers ate mostly starch for the last maybe 10,000 years. And sugar for most populations goes back a little over 100 years.

          Look up and read the short paper, “The Worst Mistake in the History of the Human Race” by Jared Diamond University of California at Los Angeles Medical School.

      2. I’m not convinced that the Atkins or paleo type diets are ideal,

        What essential nutrients do you get from alcohol, sugar or starchy foods that you don’t get from eating meat, dairy, high-fiber vegetables, and fruit? The answer is none.

        And remember, the whole cholesterol scare was based on feeding it to rabbits. And they didn’t die from atheroma or other coronary disease, they died from anorexia. They wouldn’t eat anymore.

    2. sarcasm or really stupid?

      1. Today it really seems like performance art. It’s just hitting too many idiotic buzz words.

      2. IT’S THURSDAY.

        1. Got to be an inside-troll-job.

    3. Dude,

      If you are going to troll, you need to be more subtle. Dialing the retard up to 13 is just giving the game away!

    4. This is satire, right? You’re being tongue-in-cheek, correct?

      Because the alternative explanation is simply too disturbing to entertain.

      1. You think it’s fine for these snake oil assholes to sell all this diet fad shit to people who can’t afford it?

        People are struggling enough to put food on the table and now they’re throwing away their money on shit that makes that food bad for them.

        1. Re: Rationing Stinker,

          You think it’s fine for these snake oil assholes to sell all this diet fad shit to people who can’t afford it?

          I am not in the habit of answering clumsily-loaded questions, R.

          People have a right to peddle anything they want, and other people have the right to accept or reject their wares. Thinking that people are invariably stupid and cannot know better is just not rational thinking.

          No pun intended.

          People are struggling enough to put food on the table

          I’m crying already. See me cry? See? I’m crying.

          and now they’re throwing away their money on shit that makes that food bad for them.

          Yeah – I suggest you take their money and only give it back if they promise to only eat what the government tells them to eat.

          1. YHBT YHL HAND

    5. C’mon, guys. RT is just a very accomplished, note-perfect mimic/satirist of the progs.

    6. As someone currently on a rather significant weight loss journey, my experience has been that the Paleo and Atkins folks have been a lot more right than a lot more wrong.

      I think the “carbs and processed foods are poison” parts of these diets go way too far, but letting folks go back to eating bacon and eggs is an enormous dietary benefit.

      The bigger issue for me is not what makes people fat. To me the real problem is that once they get fat, telling them all they are allowed to eat are sticks and leaves does a whole bunch to ensure they stay fat.

  8. I’ve often thought that any citizen ought to have standing to challenge any law on constitutional grounds at any time, whether or not they have any personal stake. Why should one have to wait until someone’s liberty or property are at stake before a law gets overturned?

    I’m sure there are reasons for the standing rules. It could really gum up the court system. But maybe that would discourage the passage of unconstitutional laws.
    Or perhaps there should be some sort of super supreme court whose job is to seek out and eliminate unconstitutional laws on the books.

    1. The job of the judicial branch is to justify the actions of the other two branches.

      One way to do this is to make it as difficult as possible to challenge a law.

      They’re just doing their job.

      1. Hey, a man can fantasize.

      2. Sounds like someone yearns for kritarchy.

        1. Sure. Why not give it a try? As long as they can only get rid of laws.

          It just seems unreasonable to me that a person should have to incur the risk, expense and hassle of breaking a law and defending oneself in court to get rid of a law that shouldn’t exist.
          I’m sure you’ve got some great lawyerey reason why that doesn’t work. But I enjoy playing with different ways things could be run.

          1. Ive thought the same. Why dont I have standing to challenge the constitutionality of marijuana laws just because I have no interest in smoking pot?

    2. This would totally mess up running the country. You’d have every little nutjob on the internet with free time bringing all these challenges over everything.

      The basic functions needed to keep society going would grind to a halt.

      1. Hell, there’s enough anti-cop and anti-military nutjobs on this forum alone to let murderers, terrorists and drug dealers run free violating society for years.

      2. Im failing to see the flaw.

        1. As I said upthread, you could truck in Greens from NYC or Portland or wherever to challenge industrial activity without having any actual injury.

          1. How is industrial activity something that can be challenged on constitutional grounds?

            1. Government ‘permitting’ industrial activity deprives people of clean air or pristine trees or somesuch nonsense.

              1. Government ‘permitting’ industrial activity deprives people of clean air or pristine trees or somesuch nonsense.

                That sounds more like a property rights issue. What property is owned by these “greens”?

            2. Yeah, in Zeb’s scenario, the defendant would always be the government. At least how I’m reading it.

          2. And?

            They can sue, the court grants them standing, then dismisses on summary judgment and charges them court costs and opponents lawyers’ fees.

          3. As I said upthread, you could truck in Greens from NYC or Portland or wherever to challenge industrial activity without having any actual injury.

            What police power do these greens have to enforce their activity? They can be easily be cleared away with bulldozers.

            1. And here we get to libertarians supporting violence against people they disagree with. So much for that non-aggression principle.

              1. Seriously. They sound just like liberals now.

              2. Yeah, I know. Some people just suck at understanding property rights. Good thing JW doesn’t.

          4. As I said upthread, you could truck in Greens from NYC or Portland or wherever to challenge industrial activity without having any actual injury.

            Well, that’s pretty much what we have now, only the Greens are ensconced at the EPA and there’s no need to truck them around.

        2. You fail to see a flaw in day to day life ceasing to function?

          1. My day to day life wouldnt be effected at all.

            1. But how do you do anything without laws telling you that you’re allowed to.

            2. Except for the mobs busting into your house stealing everything you have. With no government who is going to protect your property?

              1. Imagine if there were no property…

                1. Sorry, I didn’t see the part where Zeb advocated abolishing law enforcement. Nice goalposts, by the way.

  9. 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.

    I remember Judge Napolitano saying after Obamacare was passed that it couldn’t make the Supreme Court anytime soon because no one had standing to challenge it yet.

  10. Randian, here’s why you’re wrong.

    I think it’s pretty clear what has happened here: the state of North Carolina panicked at the prospect that this regulator had produced the perfect test case plaintiff to bring their licensing superstructure down.

    They therefore instructed the regulator to leave this guy alone in the future, and persuaded the court to issue this standing decision specifically to avoid having the matter litigated.

    But this outcome leaves the offending legislation in place. Not only that, but it leaves the regulatory opinion in place (since all opinion correspondence on regulatory matters like this is published to provide reference material to licensees, potential licensees, and their attorneys). So the legislation and opinion letter get to remain in place, to chill the speech of all potential speakers, both in this case and in all analogous cases.

    1. But I am not necessarily a results-oriented person. I think the question is “what system do we want to have in place?”, and I think the best system is that people should be able to sue unless they have an actual injury, not a broad philosophical “I object to this” injury. If the people of the state of North Carolina don’t want licensing like this, then they can express themselves at the ballot box.

      1. The correspondence from the agency is the injury, since it constitutes a positive threat.

        It’s not necessary to argue that I should be able to get on a bus and go to North Carolina right now and sue and be granted standing. Even if we say that I shouldn’t have the standing, this guy was the target of a regulatory enforcement action. The state gave him standing when they sent him a letter.

        They didn’t send me a letter. They didn’t send robc a letter. So fine, say we don’t have standing. But they sent this guy a letter. If they didn’t him to have standing, they should not have initiated a regulatory action against him.

        1. The correspondence from the agency is the injury, since it constitutes a positive threat.

          I continue to disagree on that point. Perhaps this is a ‘legal world’ perspective versus a ‘real world’ perspective. I recognize that a police officer does not have to be granted permission to enter my property even if he aggressively ‘asks’, but most people would think they are required to comply. The same thing is present here: legally, without a threat of fines or jail, there is no threat. It’s the reason we have people openly talking about defying Obamacare. I recognize that to some people, receiving a letter from a regulatory agency is a scary proposition, however.

          1. But you’re overstating the power of standing in constitutional jurisprudence. The mere threat of the government taking an unconstitutional action has been sufficient to get laws struck down. I’ll grant that the courts have been all over the place on this (like with most things), but look at some of the rulings on speech and, even more so, on religion that address “weak” cases of standing.

            Personally, I think standing shouldn’t be required when a law or action is unconstitutional on its face. The injury is the chilling effect on the free exercise of the threatened right. There’s some case law favoring that view to some extent, at least with “fundamental rights”, but standing rears its ugly head even there when courts want to avoid making substantive decisions.

        2. I have to disagree. Getting a compliance letter is not an injury – getting fined for not complying is. It is easy to take offense at the compliance letter in this case – but offense isn’t injury. Not unless you want to turn our legal system into a freak show for the benefit of everyone who takes offense at some stupid fucking thing.

          1. Its not about “taking offense” it is about “implied threats”.

              1. Not even remotely the same thing.

          2. Not unless you want to turn our legal system into a freak show for the benefit of everyone who takes offense at some stupid fucking thing.

            It wouldn’t turn into in a freak show for the benefit of everyone. Just the people who get regulatory letters.

            I take offense at the law here, but I didn’t get a letter, so I’m not empowered to do anything on freak show basis.

            The state of North Carolina can defend itself against freak show litigation by not sending letters directing named individuals to undertake or cease certain activities unless they’re sure they aren’t vulnerable to constitutional challenge. Problem solved.

          3. ” Getting a compliance letter is not an injury – getting fined for not complying is.”

            So compliance letters have no purpose and can simply be ignored. Because the agencies have no expectation that anyone reads them at all. Right?

      2. I think you missed a ‘not’ in there.

        But in any case, with summary judgements, payments of court fees and redresses for frivolity, I don’t think that the number of “I object to this” people would be much lower than you think.

        Maybe not at first, but it would balance itself out like a market.

  11. Understand that what you are basically saying is that any time any agency renders an advisory opinion, it is threatening the advised.

    Yes. That is exactly what we are saying.

    If a group of police officers every morning went to the home of a black family and announced over their loudspeaker, “Any of you niggers comes out of your house today, we’re busting your fucking nigger skulls for vagrancy!” the inhabitants of that house would have an immediate cause of action even if they obeyed the illegal order.

    1. What if they did the same exact thing (with the same exact words) at a Jewish family’s house? Imagine how confused they’d be.

    2. The police are not regulatory agents, so I think that is disanalogous. Anyway, this is a gray area: I don’t think every communique from every government agency is an implied threat. You do. I think the better system to enable local control and federalism is to limit standing. You don’t.

      It’s a tactical disagreement.

      1. “If you don’t do this, we will punish you by doing that.”

        1. Except there was no finding or fact that that sentence or anything approximating it was uttered here. You are saying it’s implicit in all government communication, and I don’t agree.

          1. Sure, in the form of a polite suggestion there may not be any explicit threat language, but the simple fact is that if the suggestion is refused or ignored, it will come back in the form of an order.

            Any communication by a government official, however nice and polite it may be, carries the potential for death.

            Refuse the suggestion and it comes back as an order. Refuse the order and you’ll be asked to come to court. Refuse to come to court and nice men with guns will be dispatched to your home. Refuse to leave with them and they will break into your house. Resist them and there’s a chance that they will kill you.

            All government communication is a threat.

          2. 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.

            If Law X contains penalties, the sentence “Your actions break Law X” is an explicit threat, and not even an implicit one.

      2. I don’t think every communique from every government agency is an implied threat. You do.

        Every communique from the government comes with an implicit “or else”.

        1. Well, except for the ones with an explicit “or else”.

        2. A group of churches in San Diego once got a “please stop feeding homeless people except in places where we won’t notice it happening” memo and resultant meeting. There was no “or else”.

          Every church and pastor refused to comply. Nothing else happened.

          The mayor and chief of police went away upset.

          The ACLU had threatened to intervene under the grounds that, as helping the poor/hungry is part of the Christian religion, interfering with feeding homeless people on Sundays would limit our free exercise of religion.

          Eventually a law will be passed that allows an “or else” and there won’t be a nice meeting–just pastors getting arrested, etc. like happened in Orlando with Food Not Bombs there.

          1. There was no “or else”.

            No, they just didn’t enforce the “or else”. It’s called selective enforcement.

          2. “The ACLU had threatened to intervene”

            And there is why there was no “or else” in this case. Had there not been a powerful legal entity with a track record of smacking down state and local officials who overstep their bounds in situations like this it is highly likely there would have been an or else with a few pastors getting arrested.

  12. Let’s see if I read this “standing issue” thing correctly.

    Congress passes a law saying that cops may rape women if the woman makes them feel horny.

    No one may challenge the law until someone is raped?

    1. Is it in their union contract?

      1. Procedures would be followed.

    2. Yeah, I think that’s right.

      Err, correct, I mean.

      Also a bad example, because the signature wouldn’t even be dry on the bill before that happened.

    3. That would be very confusing because the police would have to say “keep resisting”.

  13. When I read it was dismissed I assumed he had won… silly me.

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  16. 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…..
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  17. The issue of what counts as a false alarm is central to Florida v. Harris. The defendant, Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the Liberty County Sheriff’s Office, once for an expired tag and once for a malfunctioning brake light. On both occasions, after Harris declined to let Wheetley search his pickup truck, the officer walked a German shepherd named Aldo around the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited and sitting

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  18. And there is why there was no “or else” in this case. Had there not been a powerful legal entity with a track record of smacking down state and local officials who overstep their bounds in situations like this it is highly likely there would have been an or else with a few pastors getting arrested.

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  19. The issue of what counts as a false alarm is central to Florida v. Harris. The defendant, Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the Liberty County Sheriff’s Office, once for an expired tag and once for a malfunctioning brake light. On both occasions, after Harris declined to let Wheetley search his pickup truck, the officer walked a German shepherd named Aldo around the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited and sitting

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

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    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.

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