Blogger Giving Advice Resists State’s: Get a License (Steve Cooksey)
WASHINGTON — Steve Cooksey eats what he calls a cave man diet — lots of meat and greens, no bread or pasta. He says it has helped him conquer life-threatening diabetes.
But when he wrote about his experiences and offered advice on his Web site, officials in North Carolina said he was breaking the law by “providing nutrition care services without a license.”
Charla M. Burill, the executive director of the North Carolina Board of Dietetics/Nutrition, called Mr. Cooksey in January to tell him so. The conversation was by all accounts civil, and Ms. Burill had a state law on her side.
About a week after they talked, Ms. Burill sent Mr. Cooksey pages from his site liberally annotated in red ink. She said that “writing a blog on your beliefs” was fine. But Mr. Cooksey’s Dear Abby-style advice column was unlawful. So was a paid life-coaching service.
“You are no longer just providing information when you do this,” she wrote of the column and the service. “You are assessing and counseling, both of which require a license.”
Indeed, a North Carolina law says that “assessing the nutritional needs of individuals and groups” without a license is a crime. Many other states license nutritionists and dietitians, but the North Carolina law seems to be among the stricter ones.
In her markup of Mr. Cooksey’s site, Ms. Burill underlined examples of unlawful advice, including this one: “I do suggest that your friend eat as I do and exercise the best they can.”
Mr. Cooksey reluctantly made the requested changes. Then he filed a lawsuit in Federal District Court in Charlotte, N.C., saying his First Amendment rights had been violated.
“Cooksey’s advice,” his lawyers wrote, “ultimately amounts to recommendations about what to buy at the grocery store — more steaks and avocados and less pasta, for example.”
“The First Amendment simply does not allow North Carolina to criminalize something as commonplace as advice about diet,” they added.
Mr. Cooksey is represented by the Institute for Justice, a libertarian group that often takes issue with employment licensing laws, usually on the ground that they interfere with economic competition. In Mr. Cooksey’s case, it also argues that the North Carolina law interferes with the marketplace of ideas.
Jeff Rowes, one of Mr. Cooksey’s lawyers, said there should be only a limited role for government regulation of speech about food.
It is appropriate, he said, to license people who work in clinical or institutional settings like hospitals, prisons and schools. He added that there are some professional relationships, involving “people who have genuinely surrendered their judgment” to an expert, where licensing may be appropriate.
In general, though, he said, “people are allowed to give other people advice.”
Karen Gale of Indiana said she was pleased with the advice she received from Mr. Cooksey after getting to know him on Facebook. “I am in disbelief that in the United States it is against the law for a friend to give another friend uncompensated advice about what food to eat,” she said in a sworn statement filed in the case.
In his lawsuit, Mr. Cooksey, a 51-year-old service manager at a medical equipment company, said that forbidding his “personal, ongoing, uncompensated mentorship of Karen Gale and other friends like her is an unconstitutional prohibition on something that Americans have done since the inception of the United States: share advice among friends, acquaintances, readers or family about what is the healthiest way to eat.”
His defense of selling that same advice was a little less ringing, though he said the First Amendment protected that, too.
Ms. Burill declined to comment, and one of her lawyers directed me to the papers the North Carolina board has filed in court. The board has also posted a statement on its Web site “concerning Steve Cooksey, an unlicensed person.”
In the statement, the board said it had not harassed Mr. Cooksey or threatened to shut down his site. It said that it had never rendered a formal decision, and that its complaint was closed.
“As with all complaints,” Ms. Burill wrote to Mr. Cooksey in April, “the board reserves the right to continue to monitor this situation.”
The case is, in the words of Justice Byron R. White in a 1985 concurrence in a United States Supreme Court case about investment newsletters, “a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment.”
Justice White, joined by two other justices, proposed a distinction that may help the board’s side of the argument. He said the government may regulate personalized advice from someone “who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances.”
But it is not clear that one-on-one advice is the right place to draw the constitutional line.
“So long as knowledge is potentially relevant to the formation of public opinion, I do not see in principle why it should constitutionally matter whether it is distributed to one person or to a thousand,” Robert C. Post, dean of Yale Law School, wrote in a recent book, “Democracy, Expertise, Academic Freedom.”
In an interview, Mr. Cooksey said he had an unorthodox litigation strategy. “I hope we lose in the first round,” he said. “I hope we go to the Supreme Court. Our blog traffic has gone through the roof.”