                              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
