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When Free Speech Collides with Occupational Licensing

OCTOBER 03, 2012 by BOB EWING

Can the government throw you in jail for offering advice on the Internet about what food people should buy at the grocery store? That is exactly the claim made by the North Carolina Board of Dietetics/Nutrition. In response, a major free speech lawsuit was filed in federal court on May 30. It seeks to answer one of the most important unresolved questions in First Amendment law: When does the government’s power to license occupations trump free speech? The case could have a profound impact on the Internet freedom of millions of Americans who share advice on blogs, Facebook, Twitter, Reddit, and elsewhere online.

It all started three years ago when an obese man from North Carolina was rushed to the hospital in a near-diabetic coma and almost died. Steve Cooksey had been sick for some time. He slowly gained weight over the years and by 2008 had developed episodic asthma, a chronic cough, and respiratory infections, and was on multiple medications. In February 2009, after being rushed to the hospital, Steve was diagnosed with Type-II diabetes. His doctors informed him he would need insulin and drugs for the rest of his life. The day after being discharged, Steve sat home alone, crying over what he had become.

He vowed to change his life.

Steve did research on health and diabetes, much of it online. He learned that diabetes is a condition of elevated blood sugar, so he started eating foods that kept his blood sugar low, and he exercised regularly. Specifically, Steve adopted the diet of our Paleolithic ancestors, eschewing sugars, processed foods, and agricultural starches in favor of fresh veggies, fish, meats, eggs, and nuts. He lost 78 pounds, freed himself of drugs and doctors, and feels healthier than ever. In January 2010 Steve started a blog, Diabetes Warrior, to share his story and insights. He soon developed a large readership.

Steve would frequently receive feedback from friends and readers about the positive effect his Paleolithic diet had on people with obesity and diabetes. By December 2011, after nearly two years of blogging on the benefits of eating like a caveman, Steve was receiving so many interesting questions from his readers that he started a free “Dear Abby”-style column on his website. Yet just one month after his free advice column began, government officials told Steve he was engaging in criminal behavior. The North Carolina Board of Dietetics/Nutrition said that to give someone advice about what food to buy at the grocery store requires a dietitian license from the government. Obtaining such a license takes years and costs thousands of dollars.

Further, the state board told Steve it is a crime in North Carolina to offer dietary advice for free in private phone conversations with his readers and friends. Steve had also begun a paid life-coaching service, which the board deemed illegal as well.

The board sent Steve a 19-page print-up of his blog, highlighting in red pen numerous examples where his speech violated the law. The review declared that Steve’s free and private advice to friends, his free advice column, and his paid life-coaching service were all illegal speech amounting to the criminal practice of dietetics. The board’s actions had a chilling effect on Steve’s speech; he was forced to stop giving much of his dietary advice and even had to remove several pages from his website.

You Got a License for that Advice, Buddy?

Violating licensing law can lead to fines, court gag orders, and even jail. According to the government’s logic countless websites, Internet forums, Face-book, and so much more where people share information and offer each other advice on topics such as diet, parenting, and pregnancy are illegal. Steve intends to fight this censorship not only to vindicate our free speech rights but also because he is deeply concerned with the obesity and diabetes epidemics.

One hundred million Americans are now obese. The rate is rising so fast that in less than 20 years, more than half of all Americans are projected to be obese. Eighty million Americans are pre-diabetic, and 25 million more have full-blown diabetes. According to the Department of Health and Human Services, diabetes is a leading cause of strokes and heart disease—and the leading cause of blindness, kidney failure, and amputation. Every seven seconds someone in the world dies from a diabetic complication. Steve believes that his Paleolithic diet is the simplest, cheapest, and most effective way to treat obesity and diabetes—but his approach runs against conventional wisdom.

For the past several decades government officials and health experts have advised people to adopt a high-carbohydrate, low-fat diet. They argue that eating dietary fat, especially saturated fat, is unhealthy and potentially life-threatening. When government officials and health experts reduced public demand for dietary fats, food companies responded by removing fat from food and replacing it with carbohydrates, often sugar.

The experts explain that obesity results when we eat more calories than we burn. Calories are all the same, they hold, and the key to healthy weight loss is to create a caloric deficit by eating less and moving more. Predictably, when Steve Cooksey was in the ICU after being diagnosed with diabetes, he was told by a licensed dietitian to eat a high-carbohydrate, low-fat diet and limit his overall caloric intake.

However, a growing scientific minority now believe that the conventional wisdom is wrong, and subscribe to what is referred to as the Alternative Hypothesis (AH). According to this view, dietary fat has unfairly—and without proper evidence—been demonized by government officials and health experts.They believe there are good calories and bad calories, and that hormones play a central role in shaping our bodies. Specifically, the AH posits that obesity is not simply a caloric imbalance, but far more important, a hormonal imbalance.

Steve Cooksey is a believer in the AH.According to his view hormones cause us to grow, and we respond by creating a caloric imbalance. Indeed, few people question that hormones have a role in helping basketball players achieve their famous height, or that hormones are behind body growth in teenagers and pregnant women. We don’t believe that the accelerated body growth during puberty and pregnancy is caused by overeating.

As Peter Attia, M.D., recently wrote, “When people grow vertically (i.e., when people get taller) no one disputes that a hormone drives this action. … Horizontal growth is also regulated by a hormone—insulin.” Insulin is the hormone that primarily regulates body fat. Sugar raises our insulin, and most carbohydrates, even whole grains, break down into sugar in our bodies. As George Cahill of the Harvard Medical School says,“Carbohydrate is driving insulin is driving [body] fat.” Chronically elevated insulin is at the heart of many chronic diseases afflicting our society—notably obesity and diabetes, as well as heart disease, cancer, and Alzheimer’s. (For details on the science, see Gary Taubes’s Good Calories, Bad Calories or his updated, more accessible Why We Get Fat.)

Our bodies, AH advocates believe, are not designed for nor have they fully adjusted to eating sugary and starchy foods—which not only creates an insulin imbalance but often leads to inflammation throughout our bodies.

Adding Irony to Censorship

There is a powerful irony in the state board’s effort to censor unlicensed dietary speech because the obesity and diabetes epidemics have been exploding in lockstep with the multi-decade “high-carb push” from government officials and health experts—beginning just as dietitians were persuading state legislatures across the country to create licensing schemes giving dietitians a monopoly on dietary advice. No evidence exists showing that dietetics licensing laws lower a state’s obesity or diabetes rates. In 1983 Texas passed the first dietetics licensing law. It is now the second-most obese state. By contrast, Colorado has never licensed dietitians and is the least obese state. Mississippi and Utah passed dietetics licensure in 1986; Mississippi is the most obese state while Utah is the second-least obese state.

Nationwide since 1983 diabetes rates have more than tripled. North Carolina passed its licensing law in 1991, and the prevalence of diabetes in North Carolina has more than doubled since then. Obesity rates in North Carolina have risen even faster.

Steve does not believe that obesity and diabetes epidemics are occurring because a few decades ago people started focusing less on their health, or because people choose not to exercise enough or control their food consumption. Rather he contends that the root of this problem rests with the government officials and health experts who have convinced the public to eat the very foods that create an insulin imbalance that ultimately leads to obesity and diabetes.

That is why Steve is fighting back. (Of course his free speech rights do not depend on the correctness of his views.) He has teamed up with the Institute for Justice, a national public-interest law firm, to defend free speech and Internet freedom by filing a major First Amendment lawsuit against the state board in federal court. As his attorney Jeff Rowes explains: “You don’t need the government’s permission to give someone ordinary advice. North Carolina cannot require Steve to be a state-licensed dietitian any more than it can require the author of ‘Dear Abby’ to be a state-licensed psychologist.”

More Americans than ever now need a license to pursue the occupation of their choice—nearly one in three workers, up from just one in 20 in the 1950s, according to noted licensure expert and University of Minnesota economist Morris Kleiner. A new report by the Institute for Justice, License to Work, finds that in North Carolina and across the country these occupational licensing laws are not only widespread but often overly burdensome and arbitrary.

The Supreme Court has said surprisingly little about the ability of occupational licensing laws to trump free speech. Steve’s case presents an ideal opportunity for the high court to finally address this unresolved issue. The statute and regulations Steve is challenging with his the lawsuit give the government the authority to use occupational licensing to scrub the Internet of certain types of advice. But as my colleague, First Amendment expert Paul Sherman, says: “Advice is protected speech. Just because the government can license certain types of expert professional advice doesn’t mean the government can license every type of advice.”

Thankfully the First Amendment prevents the government from making us criminals for simply sharing ordinary advice, including our thoughts on what food people should buy.Yet unless the Supreme Court ultimately intervenes, protectionist occupational licensing laws could soon censor the speech of millions of Americans who use the Internet to exchange their ideas.

For his part Steve is willing to take his fight all the way to the Supreme Court if that’s what it takes to vindicate free speech and Internet freedom for Americans everywhere.

ASSOCIATED ISSUE

October 2012

ABOUT

BOB EWING

Bob Ewing is a member of the FEE Alumni Board and director of communications at the Institute for Justice.

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