North Carolina is giving Steve Cooksey some choices. He can stop speaking. Or he can get 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 he can skip this onerous credentialing, keep speaking and risk prosecution.
He has chosen instead to get a lawyer. His case, argued by the libertarians at the Institute for Justice (IJ), will clarify the First Amendment’s relevance to an ancient human behavior and a modern technology.
Four years ago, Cooksey was a walking — actually, barely walking — collection of health risks. He was obese, lethargic, asthmatic, chronically ill and pre-diabetic. The diet advice he was getting from medical and other sources was, he decided, radically wrong. Rather than eat a high-carbohydrate, low-fat diet, he adopted what he and other enthusiasts call a Paleolithic diet, eating as primitive humans did — e.g., beef, pork, chicken, leafy green vegetables. Cooksey lost 75 pounds and the need for drugs and insulin. And, being a modern Paleo, he became a blogger, communicating his dietary opinions.
When a busybody notified North Carolina’s Board of Dietetics/Nutrition that Cooksey was opining about which foods were and were not beneficial, the board launched a three-month investigation of his Internet writings and his dialogues with people who read and responded to them. The board sent him copies of his writings, with red pen markings of such disapproved postings as: “I do suggest that your friend eat as I do and exercise the best they can.”
“If,” the board sternly said, “people are writing you with diabetic-specific questions and you are responding, you are no longer just providing information — you are counseling — you need a license to provide this service.” This had the intended effect of chilling his speech; his self-censorship stopped his blog. By saying that his bloggings will be subject to continuous review, North Carolina hopes to silence him in perpetuity.
IJ’s Jeff Rowes notes that Cooksey’s speech “involves no sensitive relationship (as in psychological counseling), no uniquely vulnerable listeners (as in potential legal clients forced to make snap decisions), and no plausible presumption that the listeners are unable to exercise independent judgment.” That presumption is, however, the animating principle of modern regulatory government. North Carolina is uninterested in the fact that Cooksey’s advice is unpaid, freely solicited and outside any context of a professional-client relationship. The state simply asserts that Cooksey’s audience is “a uniquely vulnerable population,” which is how paternalistic government views everybody all the time.
Were Cooksey blogging for profit to sell beef and other Paleolithic food, he would be free to advise anyone to improve their health by buying his wares. So his case raises two questions:
Is an individual’s uncompensated advice, when volunteered to other individuals who seek and value it, constitutionally protected? And does the Internet — cost-free dissemination of speech to spontaneous, self-generated audiences — render many traditional forms of licensing obsolete?
Two principles are colliding. One is that when government regulates speech based on its content, judicial “strict scrutiny” of the regulation requires government to bear the burden of demonstrating a “compelling” need for “narrowly tailored” speech restrictions. The second is that when government regulates occupations in ways that restrict entry to them, excluded citizens bear an enormous burden of demonstrating that there is no reasonable basis for the regulation.
Since the New Deal, courts have applied the extremely permissive “rational basis” test: If legislatures articulate almost any reasons for regulating, courts will defer to them. This has given a patina of high principle to the judiciary’s dereliction of its duty to prevent individuals’ liberty from being sacrificed to groups’ rent-seeking. Laws like the one silencing Cooksey are primarily rent-seeking. They are written to enhance the prestige and prosperity of a profession by restricting competition that would result from easy entry into it, or from provision of alternatives to its services.
People, being opinionated mammals, have been dispensing advice to one another since the advent of language and have been foisting dietary opinions since cavemen weighed the relative benefits of eating woolly mammoths or saber-toothed tigers. So the IJ has two questions for North Carolina and for the judicial system:
Did Ann Landers and Dear Abby conduct 50-year crime sprees by offering unlicensed psychological advice? Is personal advice as constitutionally unprotected as child pornography? If so, since a 2010 Supreme Court opinion, it is less protected expression than videos of animals being tortured.