Steve Cooksey v. Michelle Futrell ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2084
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.
No. 12-2323
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.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cv-00336-MOC-DSC)
Argued: May 15, 2013 Decided: June 27, 2013
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.
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.
2
THACKER, Circuit Judge:
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.
3
I.
A.
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
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
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, 2 id. at 30-31 (Compl. ¶¶ 125-31).
B.
On January 12, 2012, Cooksey attended a nutritional
seminar for diabetics at a church near his home. The seminar
2
For example, for $197/month, Cooksey would have 20 15-
minute phone conversations and exchange 8 emails each month with
a client.
5
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.
6
e. Evaluating, making changes in, and maintaining
appropriate standards of quality in food and nutrition
services.
Id. § 90-352(4).
The Act also provides, “Any person who violates any
provision of this Article shall be guilty of a Class 1
misdemeanor. Each act of such unlawful practice shall
constitute a distinct and separate offense.” 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) (providing that the State Board shall, inter alia,
“[c]onduct investigations, subpoena individuals and records, and
do all other things necessary and proper . . . to enforce this
Article”). 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).
7
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
8
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. at 66 (emphasis supplied). Burill attached print-outs from
Cooksey’s website, which she and the Complaint Committee had
marked with a red pen, indicating which statements showed “areas
of concern.” Id.; see also id. at 35-53 (the “red-pen review”).
Some of the comments from the red-pen review include
the following:
• “You should not be addressing diabetic’s specific
questions. You are no longer just providing
information when you do this, you are assessing
and counseling, both of which require a license.”
J.A. 39.
• “When helping [a website visitor] with this issue
[introducing whipping cream into her diet] you
were assessing and advising –- these activities
require a license. Further -– would seem to
communicate to the public that you can provide
this type of service possibly for them too when
you post in this manner.” Id. at 40.
• “It is acceptable to provide just this
information [a meal plan], but when you start
recommending it directly to people you speak to
or who write you, you are now providing diabetic
counseling, which requires a license.” Id. at
45.
• “(1) As previously stated, you can provide
information on your site, but you cannot work
one-on-one with individuals[.] (2) Consider how
these testimonials come across to the public –-
would the lay person believe you could counsel
him/her?” Id. at 48.
9
The State Board simply drew large red “X’s” through Cooksey’s
various fee-based life-coaching packages.
Cooksey did not contact the State Board to further
discuss the red-pen review as Burill’s email invited; rather, he
altered his website and “ceased expressing opinions in the form
of personal dietary advice based on his fear of civil and
criminal action against him by the State of North Carolina.”
J.A. 25 (Compl. ¶ 101). On April 9, 2012, Burill sent Cooksey a
letter on State Board letterhead stating, in relevant part,
Under North Carolina General Statute § 90-365, a
license is required to engage in the practice of
dietetics/nutrition. Upon initial review of your
website it was discovered that you were advertising
“diabetes support packages” and charging a fee for
these services. When we spoke on January 18, 2012 3 you
indicated that you would take down the support
packages page and make the disclaimer on your website
more prominent. Shortly thereafter, although you did
not take down the page, you did delete the packages
and you did make your disclaimer more prominent.
Since our last correspondence, it appears that you
have remained in substantial compliance with the
requirements of Article 25, Chapter 90 of the North
Carolina General Statutes. Therefore, effective April
9, 2012, the Board is closing this complaint. As with
all complaints, the Board reserves the right to
continue to monitor this situation.
Id. at 105 (emphasis supplied).
3
It appears that Burill is referring to an email
communication she had with Cooksey on January 18, 2012, wherein
Cooksey told her he had moved his disclaimer to the home page
and removed the diabetes support packages page. See J.A. 66.
10
C.
On May 29, 2012, Cooksey filed suit in the Western
District of North Carolina, alleging Appellees violated his
First Amendment rights. Specifically, the complaint contains
three counts alleging violations of 42 U.S.C. § 1983:
(1) Count One: a violation based on restriction of the
“Dear Abby-style Advice Column”: the application of
the Act “is a content-based restriction on his speech
in that the State Board declared his speech illegal
based on the fact that it involved advice about diet
and not advice about any other topic such as auto
mechanics, taking the SATs, or marriage”;
(2) Count Two: a violation based on the restriction of
the free “Personal Dietary Mentoring” that Cooksey
offered through his website: “Defendants’ prohibition
of Plaintiff Cooksey’s personal, ongoing,
uncompensated mentorship . . . is an unconstitutional
prohibition on something that Americans have done
since the inception of the United States: share advice
among friends”; and
(3) Count Three: a violation based on the restriction
of Cooksey’s fee-based “‘Diabetes Support’ Life-
Coaching” packages: “The speech associated with
Plaintiff Cooksey’s personal, ongoing, uncompensated
mentorship of friends, acquaintances, readers, or
family, as described in this Complaint, which
Plaintiff Cooksey contends is speech protected by the
First Amendment, does not lose its First Amendment
protection simply because Plaintiff Cooksey charges a
fee for that exact same speech.”
J.A. 27-30 (Compl. ¶¶ 106-31). Cooksey seeks a declaratory
judgment that the Act and attendant regulations “are
unconstitutional as-applied and on their face to the extent that
they prohibit Plaintiff Cooksey from” conducting the Dear-Abby-
style column, personal dietary mentoring, and the life-coaching
11
service; a permanent injunction preventing the State Board from
enforcing the Act and attendant regulations; and attorney’s fees
and costs. Id. at 31-32 (Compl. ¶¶ A-H).
On July 27, 2012, Appellees filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack
of standing and ripeness, and 12(b)(6) for failure to state a
First Amendment claim. The motion was referred to a magistrate
judge, who recommended that the motion be granted and the
complaint be dismissed for lack of standing. The district court
agreed and dismissed the complaint without prejudice on October
5, 2012, explaining,
Plaintiff’s first objection is that it was plain error
for the magistrate judge to conclude that because the
state board issued no formal decision, there could be
no injury. As the undersigned recognized in its own
Order and as found by the magistrate judge in the M&R,
plaintiff volunteered to remove parts of his website
that the state board’s executive director identified
as being areas of concern. The record before the
court is devoid of any evidence or even an allegation
that the state board made a formal determination on
whether plaintiff violated the Dietetics/Nutrition
Practice Act, N.C. Gen. Stat. § 90-350, et seq., took
or threatened any formal action in response to the
complaint lodged against plaintiff, or ordered
compliance in any way. Indeed, there is no evidence
or allegation that the state board or its executive
director referred the complaint to a district attorney
for prosecution. See N.C. Gen. Stat. § 90-366.
Inasmuch as plaintiff was not subjected to any actual
or imminent enforcement of the Act, he lacks Article
III standing. . . . Clearly, voluntarily removing
parts of one’s website in response to an inquiry from
a state licensing board is not a sufficient injury to
invoke Article III standing.
12
Cooksey v. Futrell, No. 3:12-cv-336, 2012 WL 4756065, at *2-3
(W.D.N.C. Oct. 5, 2012) (J.A. 128-30). Cooksey timely noted
this appeal. 4
II.
We review de novo a district court’s dismissal for
lack of subject matter jurisdiction. See Taylor v. Kellogg
Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011).
We also review de novo a district court’s dismissal for lack of
standing and ripeness. Frank Krasner Enters. v. Montgomery
Cnty., 401 F.3d 230, 234 (4th Cir. 2005); Miller v. Brown, 462
F.3d 312, 316 (4th Cir. 2006). The burden of establishing
standing falls on the party claiming subject-matter
jurisdiction. Frank Krasner Enters., 401 F.3d at 234.
In reviewing the dismissal of a complaint, we must
“assume all well-pled facts to be true” and “draw all reasonable
inferences in favor of the plaintiff.” Nemet Chevrolet Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)
4
Cooksey also filed a motion for preliminary injunction to
enjoin enforcement of the Act during the pendency of his case,
which the district court denied. See Cooksey v. Futrell, No.
3:12-cv-336, 2012 WL 3257811 (W.D.N.C. Aug. 8, 2012). Cooksey
appealed the district court’s order denying his motion on
September 5, 2012, see Cooksey v. Futrell, No. 12-2084 (4th Cir.
Sept. 5, 2012), but he has now abandoned that appeal. See
Appellant’s Br. 1, 3. For that reason, we dismiss appeal no.
12-2084.
13
(internal quotation marks and alterations omitted). In
addition, “[w]hen addressing the appropriateness of dismissal
for lack of standing, we consider exhibits attached to the
complaint in addition to the complaint itself.” S. Walk at
Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713
F.3d 175, 182 (4th Cir. 2013). We must also consider “documents
incorporated into the complaint by reference.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III.
This appeal concerns “the threshold issue of
justiciability.” Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 328 (1999). Appellees contend
Cooksey’s claims are not justiciable because he does not have
standing to bring them, and furthermore, they are not ripe.
For the reasons that follow, Cooksey’s claims are justiciable
because he has sufficiently shown that he suffered an injury-in-
fact by First Amendment standards, and likewise, the claims are
ripe for adjudication.
A.
Standing
In determining whether Cooksey’s claims are
justiciable, we first turn to standing. Article III of the
United States Constitution “gives federal courts jurisdiction
only over cases and controversies, and the doctrine of standing
14
identifies disputes appropriate for judicial resolution.”
Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (internal
quotation marks and citations omitted). The standing doctrine
is “an integral component of the case or controversy
requirement,” id., and has three elements:
First, the plaintiff must have suffered an injury in
fact -- an invasion of a legally protected interest
which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the
injury and the conduct complained of -- the injury has
to be fairly traceable to the challenged action of the
defendant, and not the result of the independent
action of some third party not before the court.
Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotation marks, citations, and alterations omitted).
The Supreme Court of the United States has explained
that standing requirements are somewhat relaxed in First
Amendment cases:
Even where a First Amendment challenge could be
brought by one actually engaged in protected activity,
there is a possibility that, rather than risk
punishment for his conduct in challenging the statute,
he will refrain from engaging further in the protected
activity. Society as a whole then would be the loser.
Thus, when there is a danger of chilling free speech,
the concern that constitutional adjudication be
avoided whenever possible may be outweighed by
society’s interest in having the statute challenged.
Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467
U.S. 947, 956 (1984); see also Human Life of Wash. Inc. v.
15
Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010) (“[W]hen a
challenged statute risks chilling the exercise of First
Amendment rights, the Supreme Court has dispensed with rigid
standing requirements[.]” (internal quotation marks and citation
omitted)); Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010)
(“First Amendment cases raise unique standing considerations
that tilt dramatically toward a finding of standing.” (internal
quotation marks and citations omitted)). The leniency of First
Amendment standing manifests itself most commonly in the
doctrine’s first element: injury-in-fact.
Injury-in-fact is defined as “an invasion of a legally
protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (internal quotation marks and citations
omitted). Appellees contend that Cooksey loses on this first
element because “rather than alleging an injury in fact, [he]
alleges only a hypothetical ‘injury’ based on what the [State]
Board might do in the future.” Appellees’ Br. 20. Further,
Appellees maintain, “the [State] Board never compelled Mr.
Cooksey to refrain from doing anything, and there was neither
actual nor imminent enforcement of the Act.” Id. at 21.
Cooksey, however, claims he “plainly suffered an injury-in-fact
when he self-censored in response to the threat of sanctions
under the Dietetics Practice Act and in response to the actions
16
of the State Board.” Appellant’s Br. 30. He also maintains
“his speech was chilled by the civil and criminal sanctions
enumerated in the Dietetics Practice Act as well as by the
specific actions of the State Board.” Id. at 31. We agree with
Cooksey.
1.
In the most general sense, the plaintiff must have
suffered an injury or threat of injury that is “credible,” not
“imaginary or speculative.” Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979). In First Amendment
cases, the injury-in-fact element is commonly satisfied by a
sufficient showing of “self-censorship, which occurs when a
claimant is chilled from exercising h[is] right to free
expression.” Benham v. City of Charlotte, 635 F.3d 129, 135
(4th Cir. 2011) (internal quotation marks omitted). This court
has explained,
We have recognized that, to demonstrate injury in
fact, it is sufficient to show that one’s First
Amendment activities have been chilled. Subjective or
speculative accounts of such a chilling effect,
however, are not sufficient. Any chilling effect must
be objectively reasonable. Nevertheless, a claimant
need not show [he] ceased those activities altogether
to demonstrate an injury in fact. Government action
will be sufficiently chilling when it is likely to
deter a person of ordinary firmness from the exercise
of First Amendment rights.
Id. (internal quotation marks, citations, and alterations
omitted).
17
We are mindful, however, that the chilling effect
cannot “arise merely from the individual’s knowledge that a
governmental agency was engaged in certain activities or from
the individual’s concomitant fear that, armed with the fruit of
those activities, the agency might in the future take some other
and additional action detrimental to that individual.” Laird v.
Tatum, 408 U.S. 1, 11 (1972). In other words, “[a]llegations of
a subjective ‘chill’ are not an adequate substitute for a claim
of specific present objective harm or a threat of specific
future harm[.]” Id. at 13-14. But see Mangual v. Rotger-Sabat,
317 F.3d 45, 56 (1st Cir. 2003) (recognizing a First Amendment
injury-in-fact when a plaintiff is “chilled from exercising
h[is] right to free expression or forgoes expression in order to
avoid enforcement consequences”) (internal quotation marks
omitted)).
a.
In his complaint and its attached exhibits, Cooksey
has sufficiently shown that he has experienced a non-speculative
and objectively reasonable chilling effect of his speech due to
the actions of the State Board. The complaint states, “But for
the State Board’s red-pen review of his website, conversations
and emails with officials of the [State Board], . . . Cooksey
would not have a speech-chilling uncertainty about the legality
of private conversations and correspondence . . . in which he
18
expresses opinions in the form of personal dietary advice” and
he “would resume his Dear Abby-style advice column[.]” J.A. 26
(Compl. ¶ 103-04). Most telling is the fact that Cooksey
actually “ceased expressing opinions in the form of personal
dietary advice,” id. at 25, on the mentoring and Dear-Abby-style
sections of the website. He did not even have to go that far
for an injury-in-fact to lie. See Benham, 635 F.3d at 135 (“[A]
claimant need not show [he] ceased those activities altogether
to demonstrate an injury in fact.” (internal quotation marks
omitted)).
Further, the State Board’s actions would be “likely to
deter a person of ordinary firmness from the exercise of First
Amendment rights.” Benham, 635 F.3d at 135 (internal quotation
marks and alteration omitted). Cooksey received a telephone
call from the highest executive official of a state agency, who
told him she had the “statutory authority” to seek an injunction
against him if he did not bring his website in line with the
Act’s proscriptions. J.A. 18 (Compl. ¶ 64). He received a red-
pen mark-up of his website from the State Board Complaint
Committee, which surely triggered the same trepidation we have
all experienced upon receiving such markings on a high school
term paper. Furthermore, the red-pen review was accompanied by
the statement, “we would ask that you make any necessary changes
to your site, and moreover, going forward, align your practices
19
with the guidance provided.” Id. at 66. And Cooksey was told,
in effect, that he would remain under the watchful eye of the
State Board in a letter signed by Burill, which stated, “As with
all complaints, the Board reserves the right to continue to
monitor this situation.” Id. at 105. A person of ordinary
firmness would surely feel a chilling effect -- as Cooksey did.
In fact, this case presents more persuasive evidence
of chilling than another case from this court in which standing
was achieved. In North Carolina Right to Life, Inc. v. Bartlett
(“NCRL”), this court found that NCRL, a non-profit group with
the purpose of “protect[ing] human life,” had standing to
challenge certain state election regulations that would impose
criminal penalties on organizations making contributions for a
“political purpose.” 168 F.3d 705, 708, 709 (4th Cir. 1999).
NCRL wrote to the State Board of Elections to inquire whether
some of its activities (specifically, distributing voter guides)
would violate the regulations at issue, and the Board answered
in the affirmative. See id. at 709. “As a result,” the court
held, “NCRL refrained from disseminating its guide, and its
speech was chilled.” Id. at 710. The court stated, “this case
presents a statute aimed directly at plaintiffs who ‘will have
to take significant . . . compliance measures or risk criminal
prosecution[.]’” 168 F.3d at 711 (quoting Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 392 (1988)).
20
In the present case, we not only have evidence of
specific and -- unlike NCRL -- unsolicited written and oral
correspondence from the State Board explaining that Cooksey’s
speech violates the Act, but we also have a plaintiff who
stopped engaging in speech because of such correspondence, and
an explicit warning from the State Board that it will continue
to monitor the plaintiff’s speech in the future. See J.A. 18
(Compl. ¶ 63-64) (Burill told Cooksey “that he and his website
were under investigation” and that the State Board “does have
the statutory authority to seek an injunction to prevent the
unlicensed practice of dietetics.”); id. at 39 (red-pen review)
(“You should not be addressing diabetic’s specific questions.
You are no longer just providing information when you do this,
you are assessing and counseling, both of which require a
license.”); id. at 66 (Burill email) (“[W]e would ask that you
make any necessary changes to your site, and moreover, going
forward, align your practices with the guidance provided.”); id.
at 105 (Burill letter) (“[T]he Board reserves the right to
continue to monitor this situation.”). Therefore, we have no
trouble deciding that Cooksey’s speech was sufficiently chilled
by the actions of the State Board to show a First Amendment
injury-in-fact.
21
b.
Per NCRL, Cooksey also satisfies the injury-in-fact
requirement by showing a credible threat of prosecution under
the Act. This court explained,
When a plaintiff faces a credible threat of
prosecution under a criminal statute he has standing
to mount a pre-enforcement challenge to that statute.
A non-moribund statute that facially restricts
expressive activity by the class to which the
plaintiff belongs presents such a credible threat,
and a case or controversy thus exists in the absence
of compelling evidence to the contrary. This
presumption is particularly appropriate when the
presence of the statute tends to chill the exercise of
First Amendment rights.
NCRL, 168 F.3d at 710 (internal quotation marks, citations, and
alterations omitted) (emphasis supplied).
Cooksey does not have a dietician license; therefore,
he belongs to the class implicated by the Act. See NCRL, 168
F.3d at 710. It has never been alleged that the Act is moribund
(as evidenced by the fact that Burill told Cooksey that the
State Board could seek an injunction pursuant to the Act). See
id. Therefore, we are left with the question of whether the Act
facially restricts Cooksey’s expressive activity.
The Act makes it a Class 1 misdemeanor for people
without a dietitian license to, inter alia, “[p]rovide[]
nutrition counseling in health and disease,” “[e]stablish[]
priorities, goals, and objectives that meet nutrition needs
. . . ,” and “[a]ssess the nutritional needs of individuals and
22
groups, . . . .” N.C. Gen. Stat. §§ 90-352(4), 90-366.
Cooksey’s complaint describes speech that could fall under each
of these categories. See J.A. 14 (Compl. ¶ 42) (alleging
Cooksey answered questions on his website “express[ing] his
opinion[s]” on dietary issues); id. at 15 (Compl. ¶ 44)
(alleging Cooksey “provided links to his personal meal plan and
previous posts on food”); id. (Compl. ¶ 46) (alleging Cooksey
“recommended that [a] questioner’s friend eat as Plaintiff
Cooksey does and exercise as much as the friend can”).
Therefore, his speech subjects him to a “credible threat” of the
criminal penalties set forth in the Act. NCRL, 168 F.3d at 710. 5
For these reasons, Cooksey has sufficiently proven
injury-in-fact, and the district court’s conclusion to the
contrary was error.
5
The threatened governmental action need not even be a
criminal prosecution. See Meese v. Keene, 481 U.S. 465, 473-75
(1987) (plaintiff senator had standing to challenge the
government’s labeling as “political propaganda” certain films he
wished to show, because this label caused the plaintiff to “risk
of injury to his reputation”); Initiative and Referendum Inst.
v. Walker, 450 F.3d 1082, 1086, 1107 (10th Cir. 2006) (finding
that plaintiffs -- wildlife and animal advocacy groups -- had
standing where they faced a “credible threat of real
consequences” from enforcement of a constitutional requirement
that legislation “initiated to allow, limit or prohibit the
taking of wildlife” be passed by a supermajority (internal
quotation marks omitted)).
23
c.
Once Cooksey clears the initial hurdle of injury-in-
fact, he easily satisfies the other two elements of the standing
inquiry, causation and redressibility. First, causation is
satisfied where “a causal connection between the injury and the
conduct complained of that is ‘fairly traceable,’ and not ‘the
result of the independent action of some third party not before
the court.’” Frank Krasner Enters., 401 F.3d at 234 (quoting
Lujan at 560-61) (emphasis removed). Second, the redressibility
requirement is satisfied where there is “a non-speculative
likelihood that the injury would be redressed by a favorable
judicial decision.” Id.The injuries in this case -- a chilling of speech and
threat of prosecution -- were caused directly by the actions of
the State Board. Cooksey’s complaint -- which we must accept as
true -- alleges that Burill, Executive Director of the State
Board, “instructed” him to “take down the part of his website”
that presented the diabetes-support life-coaching packages.
J.A. 18 (Compl. ¶64). And there is no dispute that Burill asked
Cooksey to “align [his] practices with” the comments set forth
in the red-pen review. Id. at 66. As a result, Cooksey removed
certain speech from his website and refrained from offering the
life-coaching packages and engaging in further individualized
advising through his site. A favorable decision on Cooksey’s
24
behalf would mean the State Board would be enjoined from
enforcing the Act and/or the Act would be deemed
unconstitutional. In that case, Cooksey would find full
redress, as the advice and mentoring in which he engaged through
his website would be restored without fear of penalty.
2.
Appellees contend that the First Amendment standing
principles do not apply here because the Act “is a professional
regulation that does not abridge the freedom of speech protected
under the First Amendment.” Appellees’ Br. 26. Thus, Appellees
claim, “this case is not actually about an infringement of Mr.
Cooksey’s rights under the First Amendment. It is instead about
North Carolina’s authority to license occupations to safeguard
the public health and safety,” and the First Amendment “chilling
doctrine” (i.e., the more lenient standing analysis) does not
apply. Id. The doctrine to which Appellees refer has come to
be called the “professional speech doctrine.” Moore-King v.
Cnty. of Chesterfield, 708 F.3d 560, 568 (4th Cir. 2013).
But Appellees “put the merits cart before the standing
horse.” Initiative and Referendum Inst. v. Walker, 450 F.3d
1082, 1093 (10th Cir. 2006). In arguing that Cooksey’s claims
are not justiciable, Appellees first look to the merits of his
First Amendment claims and contend that the professional speech
doctrine precludes them. In so doing, they rely on cases that
25
were decided on the merits and did not address a justiciability
challenge. See, e.g., Thomas v. Collins, 323 U.S. 516 (1945)
(Jackson, J., concurring); Moore-King, 708 F.3d 560;
Accountants’ Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir.
1988).
The Supreme Court has explained, “whether the statute
in fact constitutes an abridgement of the plaintiff’s freedom of
speech is, of course, irrelevant to the standing analysis.”
Meese v. Keene, 481 U.S. 465, 473 (1987) (internal quotation
marks omitted). Other courts have recognized the same. For
example, in Walker, the Tenth Circuit rejected an argument
similar to Appellees’ argument that “Plaintiffs have not alleged
the invasion of a ‘legally protected interest,’ which they say
is necessary to have standing to sue.” 450 F.3d at 1092. The
Walker court conceded, “a plaintiff whose claimed legal right is
so preposterous as to be legally frivolous may lack standing on
the ground that the right is not ‘legally protected,’” but
continued, “where the plaintiff presents a non-frivolous legal
challenge, alleging an injury to a protected right such as free
speech, the federal courts may not dismiss for lack of standing
on the theory that the underlying interest is not legally
protected.” Id. at 1093. Thus, “[f]or purposes of standing, we
must assume the Plaintiffs’ claim has legal validity.” Id.; see
also City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)
26
(“[I]n reviewing the standing question, the court must be
careful not to decide the questions on the merits for or against
the plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims.”).
Therefore, the professional speech doctrine does not
pull the rug from underneath Cooksey at this early stage of the
litigation. Whether the professional speech doctrine -- as this
court has defined it in Bowman and Moore-King -- precludes
Cooksey’s challenges to the Act and the State Board’s actions is
a merits determination that may readily be addressed upon
remand.
B.
Ripeness
In determining justiciability, we must also address
whether Cooksey’s claims are ripe. See Allen v. Wright, 468
U.S. 737, 750 (1984) (identifying ripeness, along with standing,
mootness, and political question, as “doctrines that cluster
about Article III” (internal quotation marks omitted)).
Ripeness “concerns the ‘appropriate timing of judicial
intervention.’” Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d
379, 389 (4th Cir. 2001) (quoting Renne v. Geary, 501 U.S. 312,
320 (1991)), overruled on other grounds, Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012).
Traditionally, we consider “(1) the fitness of the issues for
27
judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat’l Park Hospitality Ass’n
v. Dep’t of Interior, 538 U.S. 803, 808 (2003).
Our ripeness inquiry, however, is inextricably linked
to our standing inquiry. See Doe v. Duling, 782 F.2d 1202, 1206
n.2 (4th Cir. 1986) (“Plaintiff’s personal stake in the outcome
(standing) is directly limited by the maturity of the harm
(ripeness). In any event, both doctrines require that those
seeking a court’s intervention face some actual or threatened
injury to establish a case or controversy.”).
Much like standing, ripeness requirements are also
relaxed in First Amendment cases. See New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995)
(“The primary reasons for relaxing the ripeness analysis in
th[e] [First Amendment] context is the chilling effect that
potentially unconstitutional burdens on free speech may
occasion[.]”). Indeed, “First Amendment rights . . . are
particularly apt to be found ripe for immediate protection,
because of the fear of irretrievable loss. In a wide variety of
settings, courts have found First Amendment claims ripe, often
commenting directly on the special need to protect against any
inhibiting chill.” Id. (internal quotation marks omitted).
That standing and ripeness should be viewed through
the same lens is evident from Appellees’ arguments on this
28
point. Just as they argued Cooksey has not been injured for
standing purposes, they also contend Cooksey’s claims are not
ripe because the State Board has taken no action against Cooksey
and has not “specifically determine[d] the point at which
internet communications such as Mr. Cooksey’s constitute the
practice of dietetics/nutrition requiring a license under the
Act[.]” Appellees’ Br. 44.
We disagree. This court stated in Virginia Society
for Human Life,
VSHL will face a significant impediment if we delay
consideration of the regulation’s constitutionality.
The presence of the regulation requires VSHL “to
adjust its conduct immediately.” Lujan v. Nat'l
Wildlife Fed’n, 497 U.S. 871, 891 (1990) (noting that
these types of “substantive rules” are “‘ripe’ for
review at once”). . . . Our decision today is not an
abstract interpretation, but a clarification of the
conduct that VSHL can engage in without the threat of
penalty. Therefore, we hold that the controversy is
ripe for review.
263 F.3d at 390 (some internal quotation marks, citations, and
alterations omitted); see also Abbott Labs. v. Gardner, 387 U.S.
136, 153 (1967) (“Where the legal issue presented is fit for
judicial resolution, and where a regulation requires an
immediate and significant change in the plaintiffs’ conduct of
their affairs with serious penalties attached to noncompliance,
access to the courts . . . must be permitted[.]”), abrogated on
other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977).
29
In the same way, Cooksey’s claims present the question
of whether the Act and actions of the State Board
unconstitutionally infringe on Cooksey’s rights to maintain
certain aspects of his website. No further action from the
Board is needed: it has already, through its executive director,
manifested its views that the Act applies to Cooksey’s website,
and that he was required to change it in accordance with the
red-pen review or face penalties.
Appellees rely on language in the State Board email
and letter suggesting that more discourse could occur, or that
the State Board had not yet made its final decision on this
issue. See, e.g., J.A. 66 (“Should you agree with our comments,
we would ask that you make any necessary changes to your site
. . . ”; “[S]hould you disagree I am happy to discuss.”). None
of the State Board’s statements, however, indicate that Cooksey
is free from the “threat of penalty.” Va. Soc’y for Human Life,
263 F.3d at 390. To the contrary, the last communication from
the State Board to Cooksey specifically stated otherwise. See
J.A. 105 (“As with all complaints, the Board reserves the right
to continue to monitor this situation.”). Cooksey desires “a
clarification of the conduct that [he] can engage in without”
such a threat. Va. Soc’y for Human Life, 263 F.3d at 390.
Therefore, his claims are also ripe.
30
IV.
For the foregoing reasons, the district court’s order
dismissing Cooksey’s complaint is vacated, and this case is
remanded for consideration on the merits. Cooksey’s appeal of
the district court’s denial of his motion for preliminary
injunction, which he is no longer pursuing, is dismissed.
No. 12-2084 DISMISSED
No. 12-2323 VACATED AND REMANDED
31