Wow, check out this fabulous news from The Institute for JusticeFree Speech Victory: Court Reinstates Caveman Blogger’s First Amendment Challenge:

Arlington, Va.–This morning, in a big win for free speech, the 4th U.S. Circuit Court of Appeals held that diabetic blogger Steve Cooksey’s First Amendment lawsuit against the North Carolina Board of Dietetics/Nutrition may go forward.

Cooksey ran a Dear Abby-style advice column on his blog in which he gave one-on-one advice about how to follow the low carbohydrate “paleo” diet. The Board deemed Cooksey’s advice the unlicensed practice of nutritional counseling, sent him a 19-page print-up of his website indicating in red pen what he was and was not allowed to say, and threatened him with legal action if he did not comply.

The decision reverses a previous ruling by a federal district judge that had dismissed Cooksey’s case, reasoning that advice is not protected speech and hence Cooksey had suffered no injury to his First Amendment rights.

“This decision will help ensure that the courthouse doors remain open to speakers whose rights are threatened by overreaching government” said Institute for Justice Senior Attorney Jeff Rowes. “In America, citizens don’t have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech.”


The three-judge appellate panel, which included retired U.S. Supreme Court Justice Sandra Day O’Connor, held that it had “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.”

The appellate panel also dismissed the Board’s argument that its 19-page red-pen review of Cooksey’s did not chill his speech, noting that the “red-pen mark-up of his website from the State Board Complaint Committee . . . surely triggered the same trepidation we have all experienced upon receiving such markings on a high school term paper.”

The case, which has received significant national media attention, will now be sent back to the district court. Click here for George Will’s syndicated column on the lawsuit.

Steve Cooksey said, “I give people simple advice on what food to buy at the grocery store. I have believed all along that my advice is protected by the First Amendment, and I am looking forward to proving that the censorship of my speech is unconstitutional.”

IJ Attorney Paul Sherman said, “Steve’s case raises one of the most important unanswered questions in First Amendment law: Can occupational-licensing laws trump free speech? Today’s ruling means that we are finally going to get an answer to that question.”


For more on the lawsuit, visit Founded in 1991, the Virginia-based Institute for Justice is a national public interest law firm that fights for free speech and economic liberty nationwide.

It’s cases like this one that make me so pleased and proud to donate to IJ’s free speech division. Congratulations, Steve!


I’m thrilled and excited to announce that the Coalition for Secular Government’s lawsuit on campaign finance will be heard by the Colorado Supreme Court tomorrow at 10 am. The hearing will concern the four questions about the relevant law that our judge in federal court — Judge Kane — asked the Colorado Supreme Court to answer.

I’ll be there, of course. If you’d like to attend, the hearing will be at the Ralph L. Carr Judicial Center at 1300 Broadway, Denver on Wednesday, May 8th. The hearing starts at 10 am, but you might want to arrive a bit early, as it’s the first case of the day. It’s scheduled to last just 30 minutes.

If you’ve not followed the case, check out the following write-up from the Center for Competitive Politics, the legal advocacy non-profit that has made this challenge to Colorado’s speech-stifling campaign finance laws possible.

Colorado’s Opportunity to Protect First Amendment Rights
By Tyler Martinez

May the government ban the publication of books if they contain only one sentence of express advocacy, such as “Vote for Smith”?

At the oral argument for Citizens United v. FEC, the federal government argued that campaign finance laws could ban a corporation, presumably including book publishers, from producing a book with even one sentence of express advocacy. The government’s stance was so shocking that the U.S. Supreme Court ordered another set of briefings and arguments on that issue, and today we have the famous decision upholding the right of corporations to make independent expenditures.

This May, a similar question will be heard by the Colorado Supreme Court in Coalition for Secular Government v. Gessler. This case centers around a small nonprofit, run by Diana Hsieh, a doctor of philosophy, who wanted to discuss a secular understanding of the principles of life, liberty, and property. To do this, Dr. Hsieh formed a nonprofit corporation, which she named the Coalition for Secular Government (CSG). CSG commissioned a paper discussing its philosophy regarding human personhood, written by Dr. Hsieh and her friend Ari Armstrong. On behalf of CSG, Dr. Hsieh and Mr. Armstrong raised money from their friends to help pay for the costs of writing and publishing the paper. They also ran some Facebook ads and made flyers to let people know about the paper.

The paper is 32 pages long, with 176 endnotes. It makes philosophical arguments concerning the complex public policy debate surrounding the definition of personhood. The paper used a proposed Colorado ballot measure as a backdrop for its discussion on the issue. The paper concludes with a single sentence of express advocacy: “If you believe that ‘human life has value,’ the only moral choice is to vote against Amendment 62.”

This one sentence of express advocacy meant that CSG may be forced to register as a issue committee with the state of Colorado. The state’s own briefing in the case has admitted that, but for this single sentence, the paper would go entirely unregulated by the Colorado government. While Colorado does not ban books, it does demand burdensome reporting and disclosure. Registration requires reporting the names and addresses of people who give more than $20 to help a cause–even if it is free help with Web design by a family member. Registration also requires documenting which post office an organization uses, and from which Office Depot it purchases printer paper.

The costs of failing to file these extensive reports, or not filing properly, can be extreme. One day, Dr. Hsieh’s house flooded and she was a day late with CSG’s required report. She then faced a $50 per day fine. Fortunately, this fine was waived, but only after needing to plead with the Secretary of State’s office. Even normal, non-flood-related compliance with Colorado’s byzantine filing system frustrated Dr. Hsieh and left her in constant fear of fines or lawsuits, just because she wanted to weigh in with her philosophical views.

This is not the first time the registering and reporting burdens required of issue committees has come up in Colorado. In the 2010 case of Sampson v. Buescher, a small group of residents outside of Parker, Colorado, came together to fight being annexed into the City of Parker. These individuals had raised less than $1,000 for their cause when their opposition challenged the failure of the neighbors to register as an issue committee.

In assessing the homeowners’ challenge, the Tenth Circuit concluded that Colorado’s issue committee disclosure and reporting requirements “substantial[ly]” burdened the homeowners’ First Amendment rights. The court relied on Citizens United and held that: “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

Unfortunately, the state of Colorado failed to heed the Tenth Circuit, and CSG had to call the legal team at the Center for Competitive Politics (CCP) for help. The CCP legal team filed a complaint alleging that, even though CSG plans to raise no more than $3,500 for updating and publishing their public policy paper, the state of Colorado appears to demand that CSG register as an issue committee. Once registered, CSG will again face all of the burdens of reporting their friends and allies, naming where they bought envelopes, and facing lawsuits and fines from the state for making even the slightest mistake.

Interestingly, CSG’s case was initially brought before a federal court. But Colorado law is so ambiguous that the federal judge had to ask the Colorado Supreme Court just what the Colorado law means. As a result, CCP will be before the Colorado Supreme Court this May 8 arguing the merits of registering lengthy policy papers with only one sentence of express advocacy.

As the Citizens United Court noted, it does violence to freedom of speech when a citizen must hire an attorney just to be sure how to speak. Hopefully, the Colorado Supreme Court will agree with that principle.

For more, check out my prior blogging on campaign finance regulations.

Interest Rates and Hard Currency

 Posted by on 2 May 2013 at 10:00 am  Economics, Free Society
May 022013

Just before my March radio discussion of how government control encourages short-range thinking, Tim Lee sent me the following example, which I blog with his permission:

The Federal Reserve has taken control of the future by dictating interest rates. The capital budgeting decision essentially depends on an interest rate tied to reality, an interest rate that connects actual savings to loanable funds. The now vs. later decision involves a discounting of future cash flows using an interest rate that functions as a reference. Whether it makes sense to build a factory or not depends ultimately on the specific interest rate at which capital can be borrowed. But since the Fed arbitrarily sets interest rates, that means business owners have been denied the basis on which to plan. Moreover, since the practice of driving interest rates below the natural rate has the consequence of generating the boom/bust cycle, an added level of uncertainty is added that not even the Fed can predict.

A restoration of the gold standard and naturally determined interest rates is required to make long range planning possible.

This article discusses the economic crisis and how interest rate manipulation caused it: Interest-Rate Targeting During the Great Moderation by Roger W. Garrison

That’s an excellent example, unfortunately. (FYI: I’ve not read the article in question, and I don’t have the technical background in economics to judge it.)

On a related topic: Objectivists and other free-market advocates often talk of the need to return to a gold standard. That seems wrong to me. Yes, our current system of fiat currency should be replaced by hard currency. (By “hard currency,” I mean commodity-backed currency, not merely stable currency.) However, that need not entail the gold standard.

In a truly free market, the government might choose to accept only gold-backed currency, but that choice shouldn’t be imposed on anyone else. Banks might choose to issue silver-backed or platinum-backed currency. Heck, a bank in a free market could issue currency backed by any fungible good, from crude oil to large eggs. The best option, it seems to me, would be money issued by banks backed by a “basket of commodities.” That would help stabilize prices in cases of major changes in the supply or demand of a single commodity.

So, for those of you who advocate for the gold standard: What do you mean by that? Do you mean that the government would issue legal tender backed only by gold? If so, how is that consistent with free market banking? If not, then why advocate for a “gold standard” rather than hard currency?

I’m not being snotty here. I’m not any kind of expert in economics, and I want to know if I’m missing something!

Banning the Veil?

 Posted by on 19 December 2012 at 10:00 am  Free Society, Islam, Law, Politics, Religion, Rights
Dec 192012

Might the government of a free society ever be justified in banning the veil? I’m on the fence on the issue. In some cases, I’d say — very tentatively — that such a ban might be justified as a means of protecting rights. How so?

First, I don’t think that the veil could be banned on the grounds that it represents some kind of threat, implicit or otherwise. The veil signals the subjugation of women, not jihad. In contrast, the mere wearing of KKK garb is clearly an unspoken threat in certain circumstances, such as when a parade of clansmen march up and down the street of a new black family in the neighborhood. Such would be cause for vigorous investiation, if not arrests.

The case of the veil is far more similar to the following scenario:

Imagine that people from a certain far-away country keep chattel slaves. This slavery is not merely permitted by law, but encouraged by most of the culture as just and proper. Those slaves are marked not by their skin color, but rather by certain kinds of jewelry — loose manacles that limited movement and a mouthguard that prevents most speech. If seen without the manacles and mouthguard in public, a slave would be severely beaten, if not killed.

Some people from the slave country immigrate to a free nation. In free nation, chattel slavery is absolutely forbidden and regarded with abhorrence. Nonetheless, some of those immigrants bring their slaves with them — and keep them as slaves, out of the sight of the law. These slaves are so ignorant of their proper freedoms that they don’t know that they have rights, nor how to seek assistance from the law. Also, some slaves think that slavery is their proper condition in life, due to being raised with that ideology beaten into them, literally and figuratively. Of those who want to live free, they fear that any attempt at escape would mean death: they know that their owners, aided by other immigrants from the slave country, would seek them and likely kill them.

Law enforcement in the free nation works diligently to identify and free any chattel slaves imported into the country, as well as prosecute the slaveowners. However, because the immigrant community from the slave country is so insular, that government is unable to do so effectively. Slaves — in their manacles and mouthguards — can be seen walking the streets. If these slaves are questioned about their condition by law enforcement or others, they’ll deny that they’re slaves. They’ll say that they’re wearing the jewelry of their own free choice. Some will have a look of fear in their eyes. Others will warmly defend the jewelry as a positive good because they don’t want to move or speak much.

At its wits end and unwilling to tolerate slavery within its borders, the government of the free country bans the manacles and mouthguards as tools and symbols of slavery. They hope that the slaves — freed from the restrictions of their jewelry — will be able to interact with other people in society in normal ways and thereby escape their bondage. Of course, howls of protest are heard from the immigrant community, including from some slaves, about this violation of their rights to wear what jewelry they please.

However, the government argues that to wear the jewelry is to be a slave — symbolically and in fact. The clear symbolic meaning of the jewelry — as well as its isolating effect on a person — cannot be ignored. The manacles and mouthguard are not just some wacky jewelry: they’re part and parcel of a massive violation of rights. In addition, the government cannot know that those who claim to want to wear the jewelry actually want to do so of their own free choice, precisely because the jewelry marks a slave. The word of a person wearing the jewelry might actually be coerced by his or her master. Hence, the government bans the wearing of that particular kind of jewelry.

Is that just and proper? Perhaps so.

A proper government must doggedly protect the rights of all people within its jurisdiction. Apart from murder, slavery is the worst possible violation of those rights. Slavery cannot be tolerated, nor can slavery be voluntary. To speak of the derivative rights of the slave — like the right to wear certain jewelry — is sheer nonsense. Given the violation of his fundamental rights, that can only mean the “right” of his master to force him to wear the jewelry, if the master pleases. Only once the slaves are free people — free from the domination of and violence by another — can the question of their right to wear jewelry be sensibly discussed, because only then can they do so or not of their own choice, rather than by force or permission.

Hence, I doubt that to ban the jewelry would be a violation of rights — or perhaps, it’s a minor and temporary violation of a trivial right for the sake of securing the fundamental liberty. A person must be free of slavery — free of forcible domination by the will of another — before he can be free to choose anything else, including what to wear.

Similarly, millions of women living in Muslim countries and enclaves elsewhere exist in virtual slavery to their fathers, brothers, and husbands at present. Some women embrace that subjugation, yet it’s still indefensible. The veil is part of parcel of that slavery: the veil is a symbol of subjugation, as well as a means of isolating women from the broader culture in which they live. Many women are forced to veil themselves, under threat of violence.

So to speak of the “right to veil” ignores the fact that these women are not yet free to refuse to veil. They must be freed from their subjugation before they can exercise a free choice to veil or not. That might require banning the veil for a time, to allow them to become full-fledged members of the society.

Notably, I don’t think that banning the veil could be justified in the United States at present: most Muslim women are free to veil or not, as they see fit. I’m more sympathetic to bans on the veil in Europe, as the subjugation of Muslim women within Muslim enclaves is a serious problem. Even there, however, other measures might be far more effective — better policing, shelters from women fleeing their homes, posters informing women of their rights, and so on. I’m more inclined to support banning the veil in Muslim countries seeking to westernize — and hence, liberate their women from bondage. It’s a minor measure, and instantly liberating for many women. Alas, such might force women from devout families into complete seclusion, which would be worse. Hence, even in such circumstances, different measures might be more effective.

As I said, I’m up in the air. What do you think?

Suffusion theme by Sayontan Sinha