Thursday, September 27, 2012

North Carolina goes after blogger who gives pseudo-professional (diet) "advice"

George F. Will has a particularly troubling column and anecdote on p. A17 of the Thursday, September 27, 2012 Washington Post, “Censoring Free Adbvice”, or (online), “Bureaucrats declare war on free advice”.
Will gives the story of Steve Cooskey, who, after a successful personal weight-loss experience, faces possible prosecution from North Carolina for offering “free advice” to readers of his “paleo diet” blog when he responds (presumably in comments) with diet- or disease-specific (diabetes is mentioned) “advice” to presumably naïve reader questions.

The site appears to be “Diabetes Warriror”, here

Will goes into the constitutional issues, about compelling state interest v. rational basis review. 
I’ve wonder the same things about my own blogs, and I was particularly concerned around 2006 or so after the high school substitute teaching incident that I’ve discussed (July 27, 2007). 

For example, on my “Bill Boushka retires” blogs I talk a lot about filial responsibility laws.  They are on the books in many states but are rarely invoked, but such a law was used recently in Pennsylvania.  I present the issue with the idea of promoting debate on the policy and ethical issues, which are obviously related to today’s demographic (longer lives, fewer children) and financial (stressed state budgets) concerns, as well as “family values” and respect for life.  A few times, I’ve gotten emails from people on this.  I can’t say what will happen in your state.  I can point out a link to your state’s applicable statutes, and possibly to news stories as to whether the issue has come up before your state.  I can’t tell you specifically if you could get in trouble by some particular action or inaction (like leaving a disabled parent alone).  I’ve also written, for example, about the “Annual Earnings Test” for social security benefits started early.  I can explain why I think it’s silly policy, and give all the references.  But I go get naïve questions.  No, I’m not a lawyer and I can’t say what will happen in a specific case.

This kind of question obviously comes up in other areas, like employment discrimination.  It used to come up with security clearances for LGBT people (things are much better now than they’ve ever been before – but watch the politics.)

In a blog – and in answers to comments – the line between policy or issue discussion and “advice” is almost non-existent, because consequences for real people can affect what public policies should change. And that includes North Carolina law.

I also have other blogs with movie and music reviews.  These couldn’t possibly be regarded as “advice”.  But one time I got a cell phone call from someone about piano lessons when he confused me with a concert pianist (whom I actually know pretty well) because we have similarly-styled blogs and he couldn’t remember who was who. 

What seems to be going on here is “gatekeeping”, as Google counsel William Patry says about the way copyright law has been used (see my Books blog, Jan. 3, 2012).  Or call it “turf protection.”  Licensed professionals in some areas (especially law) could fear that they will lose clients to bloggers, although the practical risk seems facetious.

The link for George Will’s story is here.

The Huffington Post also carries a story here.

The Institute for Justice is helping defend Cooksey, with a story here

Cooksey has filed a countersuit against the state called "Cooksey v. Futrell".  The Institute has a lot of discussion about the relationship between the First Amendment and licensure requirements.  Libertarians generally oppose licensing and zoning rules. 

There is some question, perhaps, about “offline private advice” if Steve actually charged for it.  But there are also other reports that the state objects when the advice is free, and that columns like “Dear Abby” could be illegal in NC if Abby doesn’t have a psychologist’s license, or my writings about Social Security rules or filial responsibility laws (or security clearances) are illegal (at least when read in NC, maybe in other states) if I’m not a lawyer.
What if Cooksey lived in another state but had visitors or “clients” in North Carolina?.  

The issue reminds me of the "debate" a few years ago over whether political blogging amounted to "off the books" campaign contributions.  

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