“Does the First Amendment Protect Your Right to Speak for a Living?”

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.

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