June 27, 2013 4th Circuit published opinion

Cooskey v Furtrell

Cooskey ran a website which advocated a high protein diet to fight diabetes and offered individual counseling and advice to visitors. The North Carolina Board of Dietetics/Nutrition informally advised Cooskey his website constituted unauthorized practice and gave suggestions as to how to bring the website into compliance with state law. The Board also noted it would monitor the situation. Cooskey followed the advice. He then sued arguing the Board violated his free speech rights. The district court found no standing or ripeness based on the lack of enforcement action or threat of an action and dismissed. The panel reversed. It held that the advice from the Board coupled with the note of enforcement authority and Cooskey’s self-censorship of stopping his individual advice met the injury in fact requirement. It held that Cooskey independently proved an injury in fact by demonstrating a credible threat of prosecution as his actions before changing the website violated several provisions of the relevant statute and could trigger criminal charges. As the statute is being enforced, this is sufficient to prove an injury in fact. Thus, as the alleged harm was directly caused by the Board’s action and can be redressed by an order to the Board to allow the speech, standing exists. The panel rejected the Board’s argument that the regulation is allowed under the “professional speech” doctrine as that is a merits question and thus irrelevant to standing analysis. The panel finally held that the case is ripe because the board has communicated its view the website violates the statute and in free speech cases that is enough as Cooskey is required to conform or face penalties.

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