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