Steve Cooksey v. Michelle Futrell
721 F.3d 226
| 4th Cir. | 2013Background
- Cooksey launched Diabetes Warrior in 2010, posting personal diet experiences, opinions, and meal plans with a disclaimer of no medical licensure.
- The site featured a Dear Abby–style advice column, a free Personal Dietary Mentoring area, and a fee-based Diabetes Support life-coaching service.
- The North Carolina Dietetics/Nutrition Practice Act prohibits unlicensed practice and authorizes the State Board to enforce via investigations and injunctions.
- After a January 2012 diabetics seminar, the Board received a report that Cooksey was engaging in unlicensed practice and began reviewing his site.
- Executive Director Burill instructed Cooksey to move his disclaimer, remove certain content, and align practices with a red-pen review; she warned of potential injunctions.
- Cooksey altered his site, ceasing personalized dietary advice due to fear of enforcement; Board later notified continued monitoring but closed the complaint in April 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cooksey had injury-in-fact for standing | Cooksey suffered chilling speech due to Board actions. | No actual or imminent enforcement; no standing. | Cooksey has injury-in-fact via chilling and credible threat. |
| Whether injury-in-fact, causation, redressability established under First Amendment | Board actions caused self-censorship and ongoing chilling; redress possible by invalidating Act. | Standing requires more concrete enforcement actions. | All three standing elements satisfied; injury traceable to Board; redressable by relief. |
| Whether professional speech doctrine defeats standing at this stage | Professional speech doctrine is not a jurisdictional bar at this stage. | Doctrine may preclude claims on merits. | Doctrine no bar to standing at this stage; merits remand possible. |
| Whether the case is ripe for review | Regulation already affects conduct; immediate review warranted. | Lack of final Board action means not ripe. | Claims are ripe; no further Board action needed. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury, causation, redressability)
- Benham v. City of Charlotte, 635 F.3d 129 (4th Cir. 2011) (self-censorship as injury-in-fact; objective chill required)
- Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) (ripe and immediate review where regulation imposes penalties)
- NCRL v. Bartlett, 168 F.3d 705 (4th Cir. 1999) (credible threat of prosecution supports standing; chilling evidence)
- Meese v. Keene, 481 U.S. 465 (1987) (standing analysis not dependent on merits; freedom of speech context)
- Virginia v. Am. Booksellers Ass'n, 484 U.S. 383 (1988) (free speech concerns underpin standing concepts)
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (ripeness and immediate conduct change in regulatory challenges)