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Cooksey v. Futrell, No. 12-2323

Decided: June 27, 2013

The Fourth Circuit held that the District Court for the Western District of North Carolina failed to properly analyze the Appellant’s claims under the First Amendment standing framework and therefore vacated its order dismissing the Appellant’s complaint, and remanded for consideration on the merits.

Early in 2009 the Appellant (“Cooksey”) was diagnosed with Type II diabetes and advised, by licensed dietitians, to maintain a diet low in fat and high in carbohydrates. However, after forming his independent conclusion, Cooksey began following the inverse diet, commonly referred to as the “Paleolithic diet.” Soon thereafter, according to Cooksey, he lost 78 pounds, his blood sugar normalized and he was able to stop using insulin as well as other diabetic medications. In January 2010, Cooksey launched a website,, wherein he discussed his lifestyle changes and various topics concerning diets and meal plans. The website contained a disclaimer noting that Cooksey was not a licensed medical professional or dietician. Relevant to this appeal, the website had three main components: (1) an advice column, wherein he answered visitor’s questions; (2) a free “Personal Dietary Monitoring;” and (3) a fee-based “Diabetes Support Life-Coaching” service. Following a nutritional seminar for diabetics in which Cooksey expressed his opinion that a Paleolithic diet is best for diabetics, someone reported him to the North Carolina Board of Dietetics/Nutrition (“State Board” or “Board”). Cooksey was subsequently contacted by the Executive Director of the State Board and informed that his website was under investigation for the unlicensed practice of dietetics/nutrition in violation of the North Carolina’s Dietetics/Nutrition Practice Act (the “Act”). Although reluctantly, Cooksey complied with the directors requests that several changes be made to the website, including eliminating the fee-based diabetic support service because he feared potential civil and criminal penalties under the Act. Several weeks later, Cooksey received a letter from the Executive Director informing him that, as a result of the changes made, the website was in substantial compliance with the act; therefore the complaint filed was being closed. Importantly however, Cooksey was informed that the Board reserved the right to continue to monitor the situation. On May 29, 2012, seeking a declaration that the Act and attendant regulations were unconstitutional, Cooksey filed suit, alleging violations of his First Amendment rights. The district court, citing a failure to demonstrate an injury-in-fact, dismissed the suit for lack of standing. This appeal followed.

On appeal, the Fourth Circuit found that, because the injury-in-fact element in First Amendment cases is commonly satisfied by a sufficient showing of self-censorship, Cooksey made a sufficient showing that he had experienced an objectively reasonable chilling effect of his speech due to the actions of the State Board. Additionally, citing the Executive Director’s communication that she had the “statutory authority” to seek an injunction against him, the court found that the Board’s actions would be likely to deter a person of ordinary firmness from the exercise of First Amendment rights. Thus the court had “no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.” Further, because Cooksey was subject to a credible threat of prosecution under the Act, the court found this provided another independent basis for a sufficient showing of injury. Next, the court addressed the Board’s contention that the First Amendment standing principles did not apply because the Act is a professional regulation that does not abridge the freedom of speech protected under the First Amendment. The court however declined to consider this contention at the standing stage, as any determination would have improperly went to the merits of the case. Lastly, the court found that, because Cooksey desires a clarification of the conduct that he can engage in without the threat of penalty under the Act, his claims are ripe. Therefore, the Fourth Circuit remanded the case back to the Western District of North Carolina for consideration on the merits.

Full Opinion

– W. Ryan Nichols