Cooksey v. Futrell
| Decision Date | 27 June 2013 |
| Docket Number | Nos. 12–2084,12–2323.,s. 12–2084 |
| Citation | 721 F.3d 226 |
| Parties | Steve COOKSEY, Plaintiff–Appellant, v. Michelle FUTRELL; Brenda Burgin Ross; Kathleen Sodoma; Christie Nicholson; Phyllis Hilliard; Cathleen E. Ostrowski; Richard W. Holden, Sr., Defendants–Appellees. American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amicus Supporting Appellant. Steve Cooksey, Plaintiff–Appellant, v. Michelle Futrell; Brenda Burgin Ross; Kathleen Sodoma; Christie Nicholson; Phyllis Hilliard; Cathleen E. Ostrowski; Richard W. Holden, Sr., Defendants–Appellees. American Civil Liberties Union of North Carolina Legal Foundation, Incorporated, Amicus Supporting Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Jeff Rowes, Institute for Justice, Arlington, Virginia, for Appellant. W. Clark Goodman, Womble Carlyle Sandridge & Rice, PLLC, Charlotte, North Carolina, for Appellees. ON BRIEF: Paul M. Sherman, Institute for Justice, Arlington, Virginia; Robert W. Shaw, Williams Mullen, Raleigh, North Carolina, for Appellant. Sean F. Perrin, Womble Carlyle Sandridge & Rice, LLP, Charlotte, North Carolina; Henry W. Jones, Jr., Lori P. Jones, Jordan Price Wall Gray Jones & Carlton, PLLC, Raleigh, North Carolina, for Appellees. Christopher Brook, ACLU of North Carolina Legal Foundation, Raleigh, North Carolina, for Amicus Supporting Appellant.
Before SANDRA DAY O'CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and FLOYD and THACKER, Circuit Judges.
No. 12–2084 dismissed; No. 12–2323 vacated and remanded by published opinion. Judge THACKER wrote the opinion, in which Associate Justice O'CONNOR and Judge FLOYD joined.
Steve Cooksey (“Cooksey” or “Appellant”) appeals the district court's dismissal of his complaint filed against Michelle Futrell, Brenda Burgin Ross, Kathleen Sodoma, Christie Nicholson, Phyllis Hilliard, Cathleen Ostrowski, and Richard Holden, members of the North Carolina Board of Dietetics/Nutrition (collectively, the “State Board” or “Appellees”). Cooksey alleges the State Board violated his First Amendment rights by causing him to self-censor certain speech on his website wherein he offered both free and fee-based dietary advice to website visitors. The district court held that Cooksey did not have standing to bring these claims, reasoning that he did not suffer an actual or imminent injury-in-fact.
The district court erred, however, in not analyzing Cooksey's claims under the First Amendment standing framework. As explained below, under that analysis, Cooksey has sufficiently satisfied the First Amendment injury-in-fact requirement by showing that the State Board's actions had an objectively reasonable chilling effect on the advice and commentary he posted on his website. His claims are likewise ripe for adjudication. We thus vacate the district court's order dismissing Cooksey's complaint, and remand so that the district court may consider Cooksey's claims on the merits.
On February 15, 2009, Cooksey was rushed to the hospital on the verge of a diabetic coma. He was subsequently diagnosed with Type II diabetes. Licensed dietitians advised that he should eat a diet low in fats and high in carbohydrates. After looking into the matter, however, Cooksey came to the independent conclusion that he should do the inverse, that is, eat a diet high in fat and low in carbohydrates, also called the “Paleolithic diet” because it is similar to the diet of humans living in the Stone Age. According to Cooksey, shortly after adopting this diet, his blood sugar normalized and he was able to stop using insulin and other prescription medications. Cooksey says that this, coupled with exercise, enabled him to lose 78 pounds, and he “feels healthier than ever.” J.A. 11 (Compl.¶ 25).1
In January 2010, Cooksey launched a website, now called “Diabetes Warrior,” www. diabetes- warrior. net, wherein he talked about his weight loss and lifestyle changes, including his personal meal plans and favorite recipes. The website contained a disclaimer that Cooksey was not a licensed medical professional and did not have any formal medical education or special dietary qualifications. On the website, Cooksey expressed his opinion that the high carbohydrate/low-fat diet was causing more obesity and diabetes. His site ultimately became very popular, with approximately 20,000 unique visitors in December 2011 and January 2012 alone.
The website had three main components of relevance to this appeal: (1) a “Dear Abby-style Advice Column,” in which Cooksey selected certain questions he received from visitors to his website and posted them, along with his answers, J.A. 27–28 (Compl.¶¶ 106–14); (2) a free “Personal Dietary Mentoring” section, in which visitors would post questions or share stories about diet, exercise, and related issues, and Cooksey would respond to the posts, id. at 28–29 (Compl.¶¶ 115–24); and (3) a fee-based “ ‘Diabetes Support’ Life–Coaching” service, in which Cooksey proposed a fee in exchange for providing individualized advice and moral support to those wishing to try the Paleolithic diet,2id. at 30–31 (Compl.¶¶ 125–31).
On January 12, 2012, Cooksey attended a nutritional seminar for diabetics at a church near his home. The seminar leader—the director of diabetic services at a local hospital—expressed her view that a high-carbohydrate, low-fat diet is best for diabetics. During the question-and-answer portion of the seminar, Cooksey expressed his counter opinion that a Paleolithic diet is best for diabetics. Someone present at the seminar reported Cooksey to the State Board, which is charged with administering North Carolina's Dietetics/Nutrition Practice Act (the “Act”), and claimed that Cooksey was engaging in the unlicensed practice of dietetics.
The Act prohibits any unlicensed person from engaging in “the practice of dietetics/nutrition,” N.C. Gen.Stat. § 90–365(1), which is defined as “the integration and application of principles derived from the science of nutrition, biochemistry, physiology, food, and management and from behavioral and social sciences to achieve and maintain a healthy status.” Id.§ 90–352(2). “The primary function of dietetic/nutrition practice is the provision of nutrition care services.” Id. “Nutrition care services” include the following:
a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.
The Act also provides, N.C. Gen Stat. § 90–366. The Act gives the State Board the power to “make application to any appropriate court for an order enjoining violations of this Article, and upon a showing by the [State] Board that any person has violated or is about to violate this Article, the court may grant an injunction, restraining order, or take other appropriate action.” Id. § 90–367; see also id. § 90–356(5) (). State regulations further provide, “Any person, whether residing in this state or not, who by use of electronic or other medium performs any of the acts described as the practice of dietetics/nutrition, but is not licensed ... shall be deemed by the [State] Board as being engaged in the practice of dietetics/nutrition and subject to the enforcement provisions available to the Board.” 21 N.C. Admin. Code 17.0403 (2006).
Cooksey alleges that shortly after the diabetics seminar, the Executive Director of the State Board, Charla Burill, called him and told him “he and his website were under investigation.” J.A. 18 (Compl.¶ 63). When Cooksey asked if he needed a lawyer, Burill responded that the State Board “tried to resolve complaints informally, but that [it] does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.” Id. (Compl. ¶ 64). Apparently during this same conversation, Burill asked Cooksey to move the disclaimer stating that he is a layperson to the home page of the website, and he did so without objection. She also “instructed” Cooksey “to take down the part of his website where he offered his ‘Diabetes Support’ life-coaching service because such a service constitutes the unlicensed practice of dietetics.” Id. (Compl.¶ 65–66). Cooksey reluctantly complied with this request “because he feared civil and criminal action against him....” Id. (Compl.¶ 65). Burill then told Cooksey that the Complaint Committee of the State Board “would review his website and report back to him on what he may and may not say without a dietitian's license.” Id. (Compl.¶ 67).
On January 27, 2012, Burill emailed Cooksey, stating,
I have reviewed your website with the Complaint Committee. Please find attached a document containing pages from your website with areas of concern noted. Given our discussion, I believe our comments should make sense, however, should you disagree, I am happy to discuss. Please feel free to contact me with any questions you may have. Should you agree with our comments, we would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided. Again, please contact me with any questions,and please update me as changes are made.
Id....
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