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Judge’s high-school flashback colors opinion

Harkening back to high-school writing assignments, an appellate judge has offered a vivid example of a “chilling effect” on speech in a First Amendment suit over a dietary-advice website.

Steve Cooksey used his website, “Diabetes Warrior,” to describe how he followed the Paleolithic diet – a high-fat, low-carbohydrate eating plan – to lose weight and go off insulin for treatment of his diabetes. But North Carolina health officials took issue with some of his statements and sent him a “red-pen review” of the site under their statutory authority over the unlicensed practice of dietetics.

Cooksey’s website carried a disclaimer saying he was not a licensed medical professional and did not have any formal medical education or special dietary qualifications. The site also offered an advice column, a forum for “Personal Dietary Mentoring” and exchange among site visitors and Cooksey’s own fee-based “Diabetes Support Life-Coaching Service.” The popular site drew 20,000 unique visitors in December 2011 and January 2012.

After receiving a complaint about the site, the North Carolina State Board of Dietetics/Nutrition reviewed the site, noting “areas of concern” and drawing large red “X’s” through various fee-based life coaching packages.

Cooksey made some changes, then filed a suit under 42 U.S.C. § 1983 alleging violation of his First Amendment rights. A Charlotte U.S. District Court said Cooksey’s voluntary removal of parts of his website in response to the state board’s “inquiry” was not a sufficient injury to give Cooksey standing to sue.

The 4th U.S. Circuit Court of Appeals disagreed, in a unanimous decision by a panel that included retired U.S. Supreme Court Justice Sandra Day O’Connor.

The “red pen mark-up of his website” from the State Board Complaint Committee “surely triggered the same trepidation we have all experienced upon receiving such markings on a high school term paper,” wrote Judge Stephanie D. Thacker. In effect, the board told Cooksey that he would remain under the board’s “watchful eye.”

“A person of ordinary firmness would surely feel a chilling effect – as Cooksey did,” Thacker said.

In its June 27 published opinion in Cooksey v. Futrell, the appellate court vacated dismissal of the suit and sent it back to the trial court.
-Deborah Elkins

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