An interesting National Law Journal op-ed from Clark Neily and Paul Sherman of the Institute for Justice, about a case of theirs, Locke v. Shore:
[T]he U.S. Court of Appeals for the 11th Circuit boldly declared last March that the regulation of “professionals’ … direct, personalized speech with clients” received no First Amendment scrutiny whatsoever.
Fortunately, that aberrant holding may not stand much longer. This Friday, the U.S. Supreme Court will meet to decide whether to review the 11th Circuit’s ruling. If it takes the case — Locke v. Shore — it will be the Court’s first opportunity in 25 years to provide much-needed guidance on the First Amendment status of “occupational speech,” a murky area of the law that has grown increasingly important as more and more people earn their living by selling their speech.
Locke v. Shore is a challenge to a Florida law that requires interior designers to be licensed by the government before they may work in a commercial setting. The plaintiffs are three interior designers and the National Federation of Independent Business, some of whose members wish to engage in speech that Florida has broadly defined as the “practice of interior design.”
Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida’s law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.
Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute “speech” within the meaning of the First Amendment. Weighed against the immense burdens Florida’s interior design law imposes on this speech is an utter dearth of evidence regarding the law’s supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida’s licensing regime had benefited the public in any demonstrable way….
I was glad to have worked on Rob Kry’s amicus brief in this case on behalf of various industry groups.
speaking for the dead says:
if the second amendment protects my right to keep and bear arms for a living, the first amendment certainly protects my freedom to speak for a living
January 5, 2012, 3:24 amTrivianus says:
Can’t you say the same about the practice of law?
January 5, 2012, 3:30 amSherry says:
“If that trend continues, its long-term consequences will be profound. There has been an explosion of occupational licensing laws during the past 50 years, as interest groups like the Florida interior design cartel have grown increasingly adept at manipulating the levers of government power to suppress competition. ”
Well, there’s the problem. Needing to be licensed to be an interior decorator is truly silly.
“In the 1950s, only 5 percent of the American work force was subject to licensing; today, that number stands at 30 percent and climbing, and it is helping destroy the engine of American prosperity.”
I think it really depends on the type of professional activity. In any case, it’s funny that there is a category called “speaking professions” or “occupational speech” when they seem to be really (apparently by the examples mentioned) more consultancy professions.
January 5, 2012, 6:10 amNathan says:
Besides the interesting legal issue raised, licensing requirements like this ought to get at least one state legislator canned, come election time. Not that I give a whit about interior design, but how do you vote for someone who would propose a regulation like this?
January 5, 2012, 6:34 amdw says:
I may be missing something, but from the cert brief I’m not sure what standard you’re recommending for review for licensing statutes like Florida’s.
Presumably you wouldn’t want to stop states from requiring licenses for, say, architects? Architects, like interior designers, express their artistic vision in their work: the key distinction is surely that an incompetent architect could threaten public safety in a way that an incompetent interior designer could not. This suggests a balancing test, but I don’t see you explicitly urging that.
January 5, 2012, 7:06 amDavid Chesler says:
What dw said. Lawyers too.
The other 47 states are a good argument against licensing interior designers, but I’m not buying this one.
January 5, 2012, 7:43 amdw says:
I may be missing something, but from the cert brief I’m not sure what standard you’re recommending for review for licensing statutes like Florida’s.
Presumably you wouldn’t want to stop states from requiring licenses for, say, architects? Architects, like interior designers, express their artistic vision in their work: the key distinction is surely that an incompetent architect could threaten public safety in a way that an incompetent interior designer could not. This suggests a balancing test, but I don’t see you explicitly urging that.
January 5, 2012, 7:50 amBlue says:
Don’t see the comparison with an architect, at all. We’re working with one right now and the whole process is intended to lead to construction blueprints and the resulting panoply of permits, inspections, etc.
January 5, 2012, 7:57 amJenn says:
Does the Florida law distinguish between decorators and designers? Interior designers (at least as I’ve seen in the industry) often have increased qualifications because they’re trained to assist with the actual architectural design of a building (as opposed to just having the good taste to select lamp x to go on table y).
Does the Florida law prohibit the practice of inferior decorating without a license, or does it simply say that “to say that you’re a licensed interior designer on promotional materials, you must do/have x, y, and z”?
January 5, 2012, 8:00 amJason says:
You could say the same, but you can also distinguish the practice of law (or architecture) by pointing to a compelling public interest in setting minimum standards. Bad lawyering can literally end in death. The health and safety arguments offered by the interior design cartel are farfetched at best.
I don’t know that IJ is arguing for a blanket prohibition on licensing professionals who speak for a living. Rather, occupational speech should be subject to something like intermediate scrutiny rather than rational basis review. To me, that seems sensible.
January 5, 2012, 8:06 amThomas Boyle says:
Yes, there’s no reason at all for states to require licensing of architects. Or engineers. There may be a reason to require standards for buildings – different matter entirely.
January 5, 2012, 8:08 amdw says:
I may be missing something, but from the cert brief I’m not sure what standard you’re recommending for review for licensing statutes like Florida’s.
Presumably you wouldn’t want to stop states from requiring licenses for, say, architects? Architects, like interior designers, express their artistic vision in their work: the key distinction is surely that an incompetent architect could threaten public safety in a way that an incompetent interior designer could not. This suggests a balancing test, but I don’t see you explicitly urging that.
January 5, 2012, 8:53 amReaderY says:
I think a fundamental problem with taking the line of argument that all speech is equally protected too far appears when we get into public education.
What right do public schools have to give grades and admission standards? A grade is nothing more than a judgment that one sort of speech is better than another of speech.
This argument was seen at its most ludicrous when a group of “art experts” argued that the state could not award grants based on considering works’ moral character, on grounds that while aesthetics is the proper subject of experts, morals has definite certain judgment and hence government has no power to determine what is “good” and what isn’t.
The difficulty with this line of argument, of course, is that aesthetics (and numerous other fields) are equally subject to subjective judgment. What right does the state (in the form of an English teacher) have to say that one person’s word is better spelled or sentence better constructed than an others’? And how can a state justify granting or denying admission to an educational program based solely on how a student has chosen to exercise their First Amendment right to speak?
And if the state can make and enforce standards for English composition, why can’t it do so for interior decorating?
January 5, 2012, 9:13 amJohn Burgess says:
The line between architects and interior designers is not a bright one. Often, interior designers do create structures within a building. Some of those structures–items raised from the floor, pendant from a ceiling, hanging off walls, removing walls, etc. can effect the structural integrity of a building and thus do implicate public safety.
I think the FL law is overkill, however. It should not be hard to draw a brighter line that stops interior designers from affecting structural integrity without consultation with licensed architects. This, in my experience, is the norm in other states and is simply good practice on the part of the interior designer.
January 5, 2012, 9:27 amA. Zarkov says:
Surely this argument would apply to psychiatrists and neurologists. None of them do surgery. In most encounters, they don’t even examine the patient; they just listen, then talk to you, and finally write one or more prescriptions. Ditto for psychologists except they can’t write prescriptions. Some strict Freudian psychiatrists don’t even talk to you. There are encounters where neither the psychiatrist or the patient says a word. Yet the medical profession deems the encounter “therapeutic,” and of course billable.
In Phillip Roth’s novel Portnoy’s Complaint Alex calls his psychiatrist “Harpo” because he never speaks. Alex began to wonder if Harpo was even alive. He eventually decided that he was because dead men don’t have answering machines.
January 5, 2012, 9:36 amAnderson says:
This suggests a balancing test, but I don’t see you explicitly urging that.
That was my thought too. “Weighed against” the impediment to speech is the apparent lack of benefit to requiring a license to “interior-decorate.”
If there’s a balancing test, then it’s evident to all but libertarians that lawyers, doctors, and such can be licensed.
So if anyone knows the relevant case law on First-Amendment balancing tests – I’m thinking “O’Connor, J.” is in there somewhere – please share!
January 5, 2012, 9:53 amCalderon says:
I’m a financial supporter of IJ and sympathetic to their arguments here, but I do agree with some of the prior commenters that the lack of a proposed test by the petitioners or amicus brief may hurt the chances of cert being granted. I skimmed both briefs, and the amicus brief does not seem to suggest what test should apply and the petition simply states at page 18:
Surely if cert is granted for this case then the petitioners will be asked at oral argument what the test should be. Maybe there were concerns over proposing a vague test in a first amendment area, but a vague test may be best we can do here. After all, White’s Lowe test itself is rather vague as to when a professional actually “takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession.”
A different tact would have been not to argue against the Lowe concurrence wholesale, but instead to accept it in theory but try to adopt a narrow interpretation. For example, one could argue that a the first amendment should not apply to licensing only when the professionals operate in an area that could not be understood by the ordinary person, and so the professional’s judgment effectively replaces the clients. This applies, more or less, to professions like attorneys, doctors, and probably investment advisors, but probably not interior designers (where the ordinary person is going to be able to understand how things appear and have competent opinions on those) and certainly not “rental advisors” or others who simply find items and show them to the client. In any case, this is all Monday morning quarterbacking, and there obviously are counterarguments to my suggestion. Good luck on getting cert!
January 5, 2012, 9:55 amDavid Chesler says:
What happened to all the comments? Mine (which added little) is gone and the main entry says 16 comments and only 3 are showing here now.
January 5, 2012, 10:01 amJoe says:
David Chesler says:
What happened to all the comments? Mine (which added little) is gone and the main entry says 16 comments and only 3 are showing here now.
VC seems to be having problems with comments now beyond the usual 13th hour trouble spot.
January 5, 2012, 10:11 amcampanile says:
ID. I’d like to say interior design is a lot like the theory of Intelligent Design– not so very– and that it’s a wonderful way to spend people’s money in commissions and tithing while suspending their disbelief. But that would be churlish and unfair to some actually quite talented interior designers out there.
It’s only those less skillful at artful arrangements and acquiring clientele who need protecting with a stringent licensing regime, and apparently they must be legion in Florida.
Re the danger posed by modifying structural elements: homeowners and interior designers often bypass the architect and go straight to a licensed and insured engineer who provides drawings and specs to satisfy local permitting conditions and lets them sleep at night.
January 5, 2012, 10:18 amthirdeblue says:
I’m not going to argue that having a strict licensing requirement for interior design is a good idea. However, just because its a bad idea doesn’t make it unconstitutional.
January 5, 2012, 10:31 amCJColucci says:
To steal a phrase from both Hugo Black and Clarence Thomas, this is an uncommonly silly law. But if it is to be held unconstitutional at all, substantive due process rather than the First Amendment seems to be the appropriate route. The number of professions — many now licensed — that involve mainly talking or writing or other expression is staggering, and I see no principled basis for OKing licensing for one over the other. “Well, we just think it’s important for lawyers; interior decorators not so much” isn’t really principled, and if some government body gets to draw unprincipled distinctions, it should be the legislature, not the courts.
January 5, 2012, 10:37 amDan the Man says:
Wouldn’t licensing the engineer violate the first amendment just as much as licensing the interior designer? After all, specs and drawings are just speech – just like the speech of interior designers and the drawings of Picasso are speech.
January 5, 2012, 10:42 amShelbyC says:
Balancing test, no pun intended, of course? Presumably licensing tests for architects could be based on whether or not your buildings stay up, but not the artistic component of your architecture.
January 5, 2012, 10:42 amJohn Schilling says:
If you’re a professional interior designer, you vote very enthusiastically in favor of someone like this, on account of he is protecting your revenue stream against broader competition. The full-time interior designers will find the licensing requirement a minor nuisance; the housewife with exceptionally good taste and a few empty hours a week, the architect who wants to add an “and we’ll recommend a decor to go with this layout” sideline to his practice, will perhaps be deterred by a license requirement.
If you’re not a professional interior designer, it is certainly annoying and suspicious that a legislator would vote for this sort of thing, but the other candidate wants to e.g. ban (or deregulate) abortion and that’s about ten thousand times more important. Really, does anyone here go through every state legislative candidate’s entire voting record and say, “on this one occasion he voted in favor of a bill doesn’t affect me and is pretty inconsequential on the grand scheme of things, but is morally objectionable so I won’t vote for him?”
January 5, 2012, 10:49 amWayneLawStudent says:
“Because the license requirement is a professional regulation with a merely incidental effect on protected speech, we cannot say that its impermissible applications are substantial relative to its plainly legitimate sweep.”
Reasoning looks pretty sound to me – plus, the license requirement is tailored to require only COMMERCIAL interior designers be licensed. In the anti-Lochner age, deference to the state will be given here… Cert denied.
January 5, 2012, 10:50 amloiki13 says:
I’d have to think about this for a while.
On the one hand, there is definitely a speech component being regulated by the state.
On the other hand, this looks like an attempt by the IJ to creatively get around the lack of acceptance by courts of their usual SDP arguments against any state licensing.
So, in a sense, it boils down (to me) to the following-
do you think that states can license for any professions?
In a certain way, all professions have a speech component. Admittedly, some less than others (although I am sure that the IJ is thinking about a new challenge claiming that hairdressers engage in inherently expressive conduct… ;) not to mention the advice they give clients!).
Meh. I’ll have to think about it some more.
January 5, 2012, 10:58 amJohn Schilling says:
Compare and contrast shouting “Fire!” in a crowded theatre vs. saying “This theatre is structurally sound!” in a house of bone-crushingly heavy cards. There’s precedent for restricting speech in the specific context of misinformation re safety hazards.
January 5, 2012, 11:05 amAnderson says:
The first Google hit on “‘first amendment’ ‘strict scrutiny’ ‘balancing test’” takes one to an item by Prof. V. himself.
It seems there’s not actually a “balancing test” per se, but the state has to show a “compelling state interest” in limiting the speech.
I think there’s a better CSI in licensing lawyers than interior decorators, but perhaps I am just rent-seeking.
January 5, 2012, 11:06 amPete says:
Interior Design is not Interior Decorating.
An interior designer is a limited-practice architect.
In states without Interior Designer licensure, you have to pay an architect or engineer to do the same thing.
Design professionals – architects, engineers, landscape architects and in some states residential designer and interior designer – are licensed by the state because they fulfill a state function, protecting public safety. Doing this requires technical education and also sometimes putting the interest of the public above that of your client (so ethical education as well as technical). The state doesn’t have the personnel or the time to fully review the plans submitted to it – to a large extent it has to trust the people who prepared the plans. Licensure is it’s way of determining who to trust.
January 5, 2012, 11:08 amcampanile says:
Dan the Man,
Licensing requirements for architects and engineers are defended on public safety grounds, as it would be too onerous on permitting authorities to vet each and every line and spec on construction docs as to structural integrity. But licensing obviously serves, also, an expensive (for the rest of us) gatekeeper function for their professions, since many of us laymen are fully capable of doing our own engineering, especially with the computer programs now available. I even have my father’s engineering table books from the fifties that would serve well with traditional structure.
Btw, to mimic an architect, wear a cord jacket, button-down shirt and khakis or a rumpled suit and bowtie. To play engineer, try no-nonsense wrinkle resistant slacks and a golf shirt.
In an ideal world, architects and engineers wouldn’t be artistically and business management tested– they’d be free to waste people’s money in an over-building process or to produce ugly constructions. Absent outright fraud, there are too many other vocations and businesses that sell people stupid stuff and garbage that aren’t regulated by monopolistic professionally self-serving boards backed by state authority.
January 5, 2012, 11:17 amyankee says:
Safety is also implicated by the fact that interior designers’ plans often involve significant alterations to plumbing, gas, and electrical systems. If the interior designer’s kitchen redesign plan involves creating an island with a stove, putting the dishwasher where the stove is now, moving the fridge from one side of the room to the other, and adding a bunch of electrical outlets, the plumbing, gas lines, and electrical wires are all going to have to be moved around. It’s important to know whether this can be done safely and to code.
January 5, 2012, 11:19 amZiz says:
IJ would say yes but not just yet. They’re starting with the easier cases.
January 5, 2012, 11:20 amOrenWithAnE says:
Don’t forget the “least restrictive means” prong.
Even if those of your with inflated notions of the gravity of interior design choices are right, FL’s scheme seems far more onerous than necessary to effect the State interest.
January 5, 2012, 11:34 amAdam says:
“Design professionals — architects, engineers, landscape architects and in some states residential designer and interior designer — are licensed by the state because they fulfill a state function, protecting public safety.”
From the opinion: “”interior design” as “designs, consultations, studies, drawings, specifications, and administration of design construction contracts relating to nonstructural interior elements of a building or structure.” Fla. Stat. § 481.203(8). The statute further provides that” `[i]nterior design’ includes, but is not limited to, reflected ceiling plans, space planning, furnishings, and the fabrication of nonstructural elements within and surrounding interior spaces of buildings.”[fn2] Id.”
Hard to see much public safety interest in regulating non-structural elements such as these.
January 5, 2012, 11:36 amWayneLawStudent says:
I don’t really see why this would be subject to strict scrutiny analysis – as opposed to rational basis, or at most ‘intermediate/heightened’ scrutiny.
Regardless, I’ve always thought that the Court’s ‘least restrictive means’ prong of analysis is murky at best – I remember reading a concurrence somewhere (Blackmun?) about what satisfies the ‘least restrictive means’ test, and the Justice pointed out that simply because smart lawyers/judges can think of a ‘less restrictive’ mechanism in hindsight doesn’t (necessarily) invalidate the mechanism a state/Congress selected…
January 5, 2012, 2:08 pmCatCube says:
I’m trained as a structural engineer (but not licensed). We like to make fun of architects as muddle-headed artists whose damn-fool designs we have to make stand up, but there are a lot of safety functions that they perform, even though their work is “non-structural.” Ensuring that the building can be safely emptied in the case of fire is the biggest one. Ensuring accessability would be another.
January 5, 2012, 2:39 pmTatil says:
Around here, interior designers may draw up plans and layouts that require all of these changes, but in the end the contractors are responsible to implement those modifications according to code and to get the necessary permits. Unless Florida uses a different system for home improvements, interior designers do not put the safety of anybody at risk. If an interior designer keeps coming up with plans that are unsafe or too expensive to implement, requiring new plans and slowing down the construction process, she will soon go out of business through the word of mouth. I don’t see a need for licensing other than crony capitalism.
January 5, 2012, 3:14 pmAnderson says:
I don’t really see why this would be subject to strict scrutiny analysis
Because that is the standard for a content-based speech restriction?
January 5, 2012, 3:37 pmKirk Parker says:
Yankee,
I don’t follow you: if the interior designer’s plans involve that kind of stuff, doesn’t a Real Architect Or Engineer™ have to get involved do do the approvable parts of that design? Or can the ID just send their informal notes/drawings to the HVAC and plumbing contractors and tell them to get started?
January 5, 2012, 3:49 pmOrenWithAnE says:
Then there’s an overbreadth issue too.
In some cases it’s murky. That doesn’t mean it’s murky in all cases …
January 5, 2012, 5:03 pmTodd says:
I have been an engineer for over 20 years, developing products in the appliance, lighting, security, aerospace, and green energy sectors. I am not licensed, nor have any of the engineers who worked for me over the years been licensed. If the world can continue spinning on its axis without licensing of engineers, then surely interior decorators, hair stylists, yoga instructors, etc can be unlicesed professions.
January 5, 2012, 7:06 pm(there is something called a Professional Engineer, or PE, which is like a license. However, it is rarely needed)
Elliot says:
How can anything an engineer does be more important than choosing pastel throw pillows?
January 5, 2012, 7:16 pmRobert says:
Psychologists, and indeed anyone else, may write prescriptions. All a prescription is is an instruction, i.e. advice, therefore it is simply personal communication.
Probably what you meant was that prescriptions from psychologists don’t qualify someone in possession of them for the privilege of having certain drugs, devices, or tests given them. That is, it’s legal across the USA for anyone to write, “Take such-and-such”, but it may not be possible for them to get that prescription legally “filled”.
This distinction is maintained even in the formal language of medical prescriptions, where “Rx” is an abbr. for “recipe”, which means “receive” or “take”. It is in formal terms an instruction to the recipient; otherwise it would say “give”.
January 5, 2012, 11:10 pmRobert says:
The difference is that interior design or decorating is the sort of thing we usually consider “art” (as opposed to an art). It may not be fine art, but it is so much like sculpture or painting, and so different from giving legal advice, that it falls into the category of expression rather than commerce.
Interior design may have useful aspects, but primarily (as implied by the alternate word “decorating”) appeals to esthetics, and produces a durable product that is to continue to appeal to the buyer’s esthetics more than anything else. If one were to seek protection for an interior design as intellectual property, there would be a much better case for it to be copyrightable or the subject of a design patent than for it to be the subject of a utility patent.
January 5, 2012, 11:19 pmRobert says:
A comment to this effect got eaten, so here goes again:
That might be the case if it were not that interior design looks like the sort of thing we call “art” rather than “an art”. It may not be fine art, but its product is not the sort of useful thing that legal advice can be, but rather a process whose product is a somewhat durable arrangement that appeals primarily to the esthetics of the buyer, similarly to sculpture or painting. If one were to seek intellectual property protection for an interior design, you’d have a much better argument for a copyright or design patent than for a utility patent.
January 5, 2012, 11:33 pmRobert says:
Wow, even more comments got eaten, but fortunately I saved a copy of my last:
That might be the case if it were not that interior design looks like the sort of thing we call “art” rather than “an art”. It may not be fine art, but its product is not the sort of useful thing that legal advice can be, but rather a process whose product is a somewhat durable arrangement that appeals primarily to the esthetics of the buyer, similarly to sculpture or painting. If one were to seek intellectual property protection for an interior design, you’d have a much better argument for a copyright or design patent than for a utility patent.
January 5, 2012, 11:37 pmRobert says:
Now it’s saying my repost of an erased comment is a duplicate.
January 5, 2012, 11:41 pmRobert says:
Will this lead to a slew of duplicate comments eventually showing up? Or because I can’t see it, is it gone forever if I don’t resupply it?
That might be the case if it were not that interior design looks like the sort of thing we call “art” rather than “an art”. It may not be fine art, but its product is not the sort of useful thing that legal advice can be, but rather a process whose product is a somewhat durable arrangement that appeals primarily to the esthetics of the buyer, similarly to sculpture or painting. If one were to seek intellectual property protection for an interior design, you’d have a much better argument for a copyright or design patent than for a utility patent.
January 5, 2012, 11:43 pmZiz says:
It’s all fun and games until someone stubs his toe on a misplaced end table.
January 6, 2012, 1:11 amJarbidge says:
I may be off base here, but isn’t that more in the purview of the plumber and electrician? My sense is that it will always be possible to wire the island. There will be a wealth of details about how to route the wire, whether existing branch circuits can be extended or new circuits or panels added, wire routing, circuit sizing, and so on. Do interior designers really say things like ‘Sure we could do an island, but current code requires 20A kitchen branch circuits, and based on the existing conduit fill for 12 gauge THHN and your existing 14 gauge 15A circuits, we’ll have to string new conduit all the way to a new subpanel in the family room and …’ (or whatever, for a fairly nonsensical example)?
January 6, 2012, 7:02 amInstapundit » Blog Archive » YES. NEXT QUESTION? Does The First Amendment Protect Your Right To Speak For A Living?… says:
[...] YES. NEXT QUESTION? Does The First Amendment Protect Your Right To Speak For A Living? [...]
January 6, 2012, 8:31 amScott Harrison says:
As has been previously pointed out in the conspiracy. As they wield the coercive power of the state in that they can issue subpoenas etc without going through a court, even a libertarian can say that lawyers (or at least barristers) should be licensed. Other professions, not so much.
January 6, 2012, 10:15 amWhat I Think says:
Plainly, the First Amendment prohibits the federal government from making any law abridging your freedom of speech.
Do you see how screwy things can get when you let the weasels and social engineers do your reading for you?
January 6, 2012, 10:21 amloki13 says:
I’ve been thinking about this some more, and I still haven’t come to a firm conclusion. Here’s my thoughts-
1. I’m a First Amendment absolutist, so I tend to be favorable to any attempt to strike down restrictions on speech.
2. Much licensing of occupations is silly, stupid, and rent-seeking by members of those occupations that does nothing more than drive costs up to consumers, and creates needless bureaucracy (the economic argument).
3. Some licensing of occupations, however, is acceptable, and is traditionally the purview of the state (IIRC).
4. I’m not a big fan of the IJ’s use of SDP arguments and the attempt to constitutionalize arguments against state licensing requirements. I would prefer a concerted political effort to get rid of the majority of the silly laws (isn’t that what the GOP should be working on?).
5. Almost every profession can be characterized as either speech or speech-action (or inherently expressive conduct) to some degree or another. While this fits in with the more modern jurisprudence on the First Amendment, I am entirely positive it doesn’t fit in with originalism. But that’s okay- I wouldn’t want an originalist First Amendment.
6. To the extent that this regulates a profession (becoming a licensed interior designers or whatever) as opposed to “speech” (someone decorating their own house, creating “art,” using speech to advise a friend where to put their throw pillows, etc.) I am, at the moment, okay with the licensure regime. It applies (according to the court) to designers, not decorators, in commercial buildings, and it seems in accord with current case law. It remains an open question as to whether it will withstand SCOTUS’s more recent First Amendment jurisprudence, but given their focus on originalism, and the fact that state licensing of professions goes back to the incorporation of the First Amendment, I’m not sure that this is a winner.
January 6, 2012, 10:50 amLee Reynolds says:
I was thinking the same thing myself.
Imagine for a moment that a license was not required for the practice of law. What would be the result?
The immediate result would be people practising law who have no business doing so. Idiots, nutters, and other dysfunctional people. This would cause problems of course. The resulting public demand for standards of competence and training for lawyers would lead to the formation of one or more certifications. Provided that these certifications were meaningful, lawyers who possessed these would be vastly preferred over those who did not.
This would not stop uncertified individuals from practising law, but it would make it more difficult for them to find clients. Consumers seeking legal advice would have an easier time finding a competent attorney.
This is precisely what we have now through the various state bar associations, with the key difference being that the government forbids anyone who is not a member of the bar from practising law.
January 6, 2012, 12:53 pmloki13 says:
Not quite. You can go ahead and practice law for *yourself* all you want.
January 6, 2012, 3:48 pmPrometheeFeu says:
I don’t see why architects would be a problem. The law could simply say that you can’t build something without blueprints signed off on by a licensed architect. So if you want to be an architect, that’s fine. But until a licensed architect signs-off on the blueprints, the building cannot commence. In fact, I imagine that courts could simply narrow the law as it stands.
January 6, 2012, 5:47 pmDavid Schwartz says:
What about licensing news reporters or bloggers? One of the things reports do is alert the public to safety hazards. If you rely on an incompetent report, you may not know that your crib is somewhat similar to a model that was connected weakly to a statistically insignificant number of deaths.
January 6, 2012, 5:54 pmDavid Kramer says:
Licensing is the way that government controls everything.
Nowadays, I need a license to-
Marry
Travel
Drive in a non commercial vehicle
Work of any kind-think of being an employee as a license, which is another licensing schema
Sell anything in a private setting
etc, etc, etc
Licensing is a fundamental restriction of my individual rights as a citizen in a free country. Since we no longer live in a free country, it is standard that everything requires a license.
edit to add- licensing is supposedly to protect those involved, once upon a time, courts were used to solve disputes, now they no longer do
January 7, 2012, 9:19 am