The Volokh Conspiracy - Interior Designers Have the Right to Call Themselves "Interior Designers,"

even if they don't have a state license, the Fifth Circuit held yesterday in Byrum v. Landreth. Texas doesn't require interior designers to be licensed, but forbids unlicensed designers from calling themselves "interior designers." The Fifth Circuit held that this likely violated the interior designers' "commercial speech" rights (i.e., the lesser but still substantial First Amendment rights recognized by the Supreme Court as to commercial advertising), and thus ordered the district court to grant a preliminary injunction against enforcement of the law. In principle, the Fifth Circuit just made a preliminary finding of likelihood of success on the merits, but the reasoning of the case suggests that the same result would likely be reached on a motion for permanent injunction.

Here's an excerpt from the court's reasoning:

The State advances a circular argument that the speech inherently tends to mislead consumers. It runs: Texas created a licensing regime; therefore, unlicensed interior designers who refer to themselves as interior designers will confuse consumers who will expect them to be licensed. The descriptive terms "interior designer" and "interior design" are not, however, inherently misleading. They merely describe a person's trade or business. The terms can be employed deceptively, for example if a person does not actually practice interior design, but the speech is neither actually nor inherently misleading. This argument also proves too much, as it would authorize legislatures to license speech and reduce its constitutional protection by means of the licensing alone.

The State next relies on two pieces of evidence to prove that unlicensed interior designers who use the title are engaged in misleading speech. The district court correctly rejected both proffers. The State offers a survey that asked irrelevant questions concerning the respondents' general preferences for "licensed" professionals. The survey included five substantive questions and seventeen demographic questions. The only question even arguably relevant to whether the job title "interior designer" is misleading was, "if there were two professionals offering the same service, one with a license, and one without a license, do you think that it is deceptive or misleading or both that the licensed and unlicensed person can use the exact same professional title?" Unfortunately, because no definition of the qualifications of the "licensed" professional was included, no probative value can be attached to the responses. We are also unable to attribute probative value to a legislative report, prepared three years before the statutes here at issue were passed, finding that some people are confused about what type of services interior designers provide and marshalling comments for and against licensing these occupations. Significantly, the legislative committee that authored the report made no suggestions for legislation of any kind.

Both the survey and the legislative report expose the fallacy in the State's effort to characterize certain interior designers' professional practices as misleading. There is no fixed definition of the covered occupations. Interior designers may confine their work to harmonizing color schemes and selecting furnishings for private residences; or they may design the physical layout of commercial spaces, including aesthetic, functional and safety attributes; or they may furnish services on a wide spectrum between these alternatives. Where no fixed definition of the services exists, there can hardly be a claim that the public is being misled about particular individuals' truthfully expressed level of expertise or services. The State has offered no evidence that the public has actually been misled about interior design services.

	[Eugene Volokh, April 23, 2009 at 7:55pm] Trackbacks Interior Designers Have the Right to Call Themselves "Interior Designers," even if they don't have a state license, the Fifth Circuit held yesterday in Byrum v. Landreth. Texas doesn't require interior designers to be licensed, but forbids unlicensed designers from calling themselves "interior designers." The Fifth Circuit held that this likely violated the interior designers' "commercial speech" rights (i.e., the lesser but still substantial First Amendment rights recognized by the Supreme Court as to commercial advertising), and thus ordered the district court to grant a preliminary injunction against enforcement of the law. In principle, the Fifth Circuit just made a preliminary finding of likelihood of success on the merits, but the reasoning of the case suggests that the same result would likely be reached on a motion for permanent injunction. Here's an excerpt from the court's reasoning: The State advances a circular argument that the speech inherently tends to mislead consumers. It runs: Texas created a licensing regime; therefore, unlicensed interior designers who refer to themselves as interior designers will confuse consumers who will expect them to be licensed. The descriptive terms "interior designer" and "interior design" are not, however, inherently misleading. They merely describe a person's trade or business. The terms can be employed deceptively, for example if a person does not actually practice interior design, but the speech is neither actually nor inherently misleading. This argument also proves too much, as it would authorize legislatures to license speech and reduce its constitutional protection by means of the licensing alone. The State next relies on two pieces of evidence to prove that unlicensed interior designers who use the title are engaged in misleading speech. The district court correctly rejected both proffers. The State offers a survey that asked irrelevant questions concerning the respondents' general preferences for "licensed" professionals. The survey included five substantive questions and seventeen demographic questions. The only question even arguably relevant to whether the job title "interior designer" is misleading was, "if there were two professionals offering the same service, one with a license, and one without a license, do you think that it is deceptive or misleading or both that the licensed and unlicensed person can use the exact same professional title?" Unfortunately, because no definition of the qualifications of the "licensed" professional was included, no probative value can be attached to the responses. We are also unable to attribute probative value to a legislative report, prepared three years before the statutes here at issue were passed, finding that some people are confused about what type of services interior designers provide and marshalling comments for and against licensing these occupations. Significantly, the legislative committee that authored the report made no suggestions for legislation of any kind. Both the survey and the legislative report expose the fallacy in the State's effort to characterize certain interior designers' professional practices as misleading. There is no fixed definition of the covered occupations. Interior designers may confine their work to harmonizing color schemes and selecting furnishings for private residences; or they may design the physical layout of commercial spaces, including aesthetic, functional and safety attributes; or they may furnish services on a wide spectrum between these alternatives. Where no fixed definition of the services exists, there can hardly be a claim that the public is being misled about particular individuals' truthfully expressed level of expertise or services. The State has offered no evidence that the public has actually been misled about interior design services.