When Steve Cooksey’s saga begins depends on your point of view.

If you’re Cooksey, it began in February 2009, when he was rushed to the hospital and diagnosed with type 2 diabetes. He was given prescriptions for a suite of drugs to treat not just diabetes but also high blood pressure and high cholesterol. His regimen called for four insulin shots a day.

On his blog, he describes that version of himself as “a sedentary garbage disposal.” He was 47, weighed 235 pounds, and suffered from asthma and plantar fasciitis as well as diabetes.

Cooksey then discovered the paleo diet. “By the end of March, I had quit taking all drugs and insulin,” he says. His version of the diet was extremely low in carbohydrates. In addition to the normal paleo stuff—no grains, no dairy, no legumes (a category that includes peanuts along with beans)—he eschews foods like potatoes, which our ancient ancestors probably started eating the minute they discovered how to use fire to make them soft enough to chew and swallow.

You can argue about the merits of the diet (which I did in, Should You Go Paleo?) but you can’t argue with Cooksey’s results: He not only lost 70 pounds, but he says his blood sugar, blood pressure, and cholesterol all returned to normal. “I haven’t had an aspirin since March of ’09,” he says. “I haven’t had a sinus medicine. I haven’t been to a doctor since my follow-up in August ’09.”

When Cooksey went paleo, he went beyond the menu into paleo-approved lifestyle modifications. He started exercising barefoot, and says his plantar fasciitis disappeared. He started swinging a kettlebell, and his chronic back pain mostly ended. He says he eats just one or two meals a day.

He started a blog about his experience (diabetes-warrior.net). His audience grew steadily. Readers asked for advice, and he was more than happy to comply. Eventually, he offered counseling via email or phone for a fee. But he says he never made much money off the venture. (He makes his living as a logistics manager for a medical-equipment provider.)

If you’re a member of the North Carolina Board of Dietetics/Nutrition, Cooksey’s saga began in January 2012. That’s when he attended a nutritional seminar for diabetics. The presenter, he says, “was an obese, type 2 diabetic. She was on insulin. And she was teaching people to eat like her!”

He says he didn’t plan to speak up, but couldn’t help himself. (Reduced impulse control when talking about food is a side effect of any successful diet.) A member of the audience took offense to his call for a low-carb, meat-rich diet, he says, and reported him to the dietetics board.

Soon he received a phone call from a board representative, who told him he couldn’t offer advice on diet or nutrition without a license. To even qualify for a license, he would need the education and training of a registered dietitian: an undergraduate nutrition degree plus 900 hours of supervised practice.

The phone call was followed by an email including this PDF of his many transgressions. The document showed 19 pages from his blog, with the board’s admonishments written up in red ink. On one page, for example, he tried to help a reader who expressed concern for a friend with diabetes. The friend, Cooksey wrote, “needs to get off the ‘carb up and shoot up’ treatment plan.” This, according to the board, is “advising,” which is against state law.

Cooksey made changes to his site. He put a disclaimer on the bottom of each page telling readers he’s not a doctor or nutritionist, and ended his short-lived consulting venture. But as he wrote on his site, “My compliance is compliance with their violation of my rights, not an agreement between us that I was wrong and they were right. …This is America and in America people should be free to give each other advice about things like diet.”

The Institute for Justice, a nonprofit, libertarian law firm, agreed to represent him in federal court. “It was a slam dunk that we wanted to take it on,” says Jeff Rowes, a senior attorney for the institute. “But it wasn’t a slam dunk legally.”

Naked Discrimination

That’s where the case gets complicated. “It is, at bottom, a collision of two well-settled legal principles,” Rowes says. First there’s the government’s power to regulate our occupations. Nobody wants to live in a country in which anyone can claim to be a doctor, lawyer, or nutritionist if that person hasn’t earned the designation. Then there’s the First Amendment, which guarantees five fundamental freedoms: religion, speech, the press, peaceful assembly, and petitioning the government.

When you write for a living, as I have for most of my adult life, you tend to think of the First Amendment as a guarantee that you can say what you want, when you want, about any subject you choose, in any medium available to you. But, Rowes says, that’s not correct.

Here’s the distinction:

Let’s say I believe that a sure-fire way to get six-pack abs is to fast all day and then eat an apple pie with vanilla ice cream right before bed. I would have every right to disseminate that tragically stupid advice. I just can’t advise an individual to quit a perfectly sensible diet in favor of my pie plan.

“The First Amendment protects the right to say dumb things, even dumb things of consequence,” Rowes says. “What governments are broadly asserting is that when you’re talking to somebody individually, that is not actually speech.” Instead it’s considered conduct, the practice of an occupation.

To be sure, an innocuous blog about food wouldn’t draw the attention of the North Carolina dietetics board. It was only when Cooksey challenged mainstream positions in a public venue that the board went after him with their red pen.

“Steve’s a dissenter,” Rowes says. “He’s saying the dietary status quo is actually harmful, and that the obesity epidemic is traceable to the standard advice. The dietetics board went after Steve because he deviated from the standard medical line.”

That was the case Cooksey and Rowes took to U.S. District Court in August 2012.

Cause célèbre

If you’re a member of the media, this is when you first took notice of Cooksey. When he was interviewed by Adam Liptak in the New York Times, he said he hoped his team would lose the opening round in federal court. Their goal was to take his case to the Supreme Court and, once and for all, establish the right of people like him to give advice to anyone who asks.

In October 2012, the district court played its role. Judge Max Cogburn Jr. dismissed the lawsuit, saying that Cooksey hadn’t demonstrated any actual injury. The dietetics board, he ruled, had merely offered “informal guidance.” And Cooksey “voluntarily removed parts of his website which the state board found problematic.”

(If Justice Cogburn’s definition of “voluntary” calls to mind the scene in Full Metal Jacket in which the drill sergeant orders a private to choke himself, you’re not alone.)

So the Institute for Justice took Cooksey’s case up the ladder to the U.S. Circuit Court of Appeals, arguing that he had indeed suffered an injury, based on his First Amendment right to free speech. “I don’t realistically think they can argue that Steve Cooksey sitting at his keyboard can be regarded as anything but speech,” Rowes says.

The three-judge panel (including former Supreme Court justice Sandra Day O’Conner) unanimously agreed, ruling that “the state board’s actions had an objectively chilling effect on the advice and commentary he posted on his website.”

What this means, Rowes says, is that Cooksey now has legal standing to sue the North Carolina Board of Dietetics/Nutrition. “We’re now in the free-speech box.” And also back in U.S. district court. If they win, they expect North Carolina to appeal. That case would go to the same circuit court that already ruled in Cooksey’s favor. If the loser of that decision appeals, the case could fulfill Cooksey’s goal of reaching the Supreme Court.

Orthodox-on-Orthodox Action

If you’re neither a lawyer nor a blogger nor a paleo-diet evangelist, this is probably the first you’ve heard of Cooksey. And that’s fine. As a stand-alone legal case, it doesn’t seem to have much to do with ordinary folks.

But the case isn’t really about Cooksey, and whether he can tell people to ignore standard advice from organizations like the American Diabetes Association and the Academy of Nutrition and Dietetics. He says he spoke up at that seminar back in January 2012 because the presenter told the audience to choose whole over refined grains, which any paleo or low-carb advocate will tell you is a pointless distinction. They say that if you want to recover from diabetes, or avoid it in the first place, you shouldn’t eat grains at all.

Those arguments are fun the first hundred times, but after that they get old. Most of the nutrition experts I’ve talked to over the years—including the ones I’ve interviewed for Men’s Health—would agree with Cooksey on one point. If you already have diabetes, the last thing you want to do is eat foods that create a rapid spike in blood sugar. That includes bread.

For people who aren’t yet diabetic, diet issues aren’t really black and white. Let’s face it: Nobody gets diabetes because of a few slices of bread. It’s all the other crap—the French fries, sodas, pastries, chips—that makes people fat and sick.

And it’s not those foods in isolation. It’s massive quantities of those foods, eaten in combination with each other. Think of a children’s party at Chuck E. Cheese’s, with soda and pizza followed by birthday cake, and imagine adults eating the nutritional equivalent on a regular basis.

Dessert for breakfast. Fast food for lunch. Pasta for dinner, washed down with beer and followed by a couple hours on the couch watching other people sweat on So You Think You Can Dance.

That’s how people inflict metabolic injuries on themselves, and it’s how Cooksey admits he used to eat. The bland, balanced-diet recommendations of the nutrition establishment aren’t to blame for pushing people down the path to metabolic dysfunction. Unfortunately, they probably aren’t the best way to solve the problem once you have it.

But if I lived in North Carolina, the law says I can’t offer that advice to an individual, even if he asks, and even if it’s clear I’m not a doctor, nutritionist, or holy man. (Interestingly, if I call myself an “herbalist,” or if I work in the food or supplement industries, I can give all the advice I want, as long as it’s in connection to marketing my own products.)

Most states, along with the District of Columbia and Puerto Rico, have mechanisms for licensing and regulating nutritionists. In my state, Pennsylvania, the rules are tucked into a bigger statute regulating nurses. They seem to exist to keep unqualified individuals from claiming to be nutritionists, and to keep nutritionists from abusing their positions. In Missouri, where I was born and grew up, the law’s stated goal is “to protect the public from misuse or misrepresentation” of the “licensed dietitian” title.

These state regulations don’t just protect the public. They protect professionals whose income and status depends on high barriers to entry into their field, and an overall respect for the letters after their names. An annual license fee is a small price to pay for a system that keeps imposters from competing directly with them.

Most of us are fine with that, if we’re talking about who can or can’t claim to have credentials and start a professional practice. As I wrote earlier, nobody wants a self-taught physician setting up next to the guy who went to an accredited medical school and did the brutally hard work necessary to earn his M.D.

The problem isn’t that the regulations exist. It’s that many, if not most, were written before the Internet gave us 24-hour connectivity to readers around the world. “It’s a system suited to the 19th or early 20th century,” Rowes says.

Lawyers at the Institute for Justice are currently working on two similar cases: Kentucky has filed an injunction to stop family therapist John Rosemond from publishing his syndicated column in newspapers within its borders. Why? Because he’s not a licensed psychologist in Kentucky. (Ironically, he’s licensed in North Carolina.) And in Texas, the state veterinary board suspended and fined retired vet Ron Hines for giving advice (some fee-based) over the Internet because it violates state law to suggest treatment without a physical examination of the animal.

The implications of these cases stretch to infinity. The person paying Hines for veterinary advice understands that he hasn’t examined their dog or cat. And why would someone taking parenting tips from a newspaper column know or care where the author is licensed? Would the advice be better if it came from Kentucky instead of North Carolina?

“No one thinks that kind of advice is the equivalent of going to see the doctor,” Rowes says. Nor is anyone claiming the three parties—the blogger, the columnist, and the veterinarian—harmed anybody. “What’s really going on is that occupations themselves, industry groups, want to create barriers to entry and monopolize practices for their own benefit and profit.”

I can’t agree or disagree. No one from the North Carolina dietetics board responded to my request for an interview, and I have no special insights into the motives of those who write and enforce these laws.

But I do know this: As an author, I may have broken laws without knowing it. Same goes for you or anyone else who works out, eats right, and shares advice with friends, family, and coworkers.

We think we’re part of the solution. But to our state licensing boards, we might be a problem.

All of us should have a problem with that.

Lou Schuler, author of the five New Rules of Lifting books with Alwyn Cosgrove, is pretty sure his advice is street-legal.

Lou Schuler Lou Schuler, CSCS, is a National Magazine Award-winning journalist and editorial director of the Personal Trainer Development Center

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