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The latest example of liberty-reducing occupational licensing schemes
comes to us from Florida, where a law restricts the practice of
interior design to people the state has licensed. Those wishing to
pursue this occupation must first undergo an onerous process ostensibly
in the name of “public safety.”
In reality, the law serves as an anti-competition measure that
protects Florida’s current cohort of interior designers. Our friends at
the Institute for Justice have pursued a lawsuit against the law but
lost their appeal in the Eleventh Circuit.
Cato has now joined the Pacific Legal Foundation on an amicus brief
asking the Supreme Court to review that ruling. The lower court got it
wrong not just with respect to the right to earn a living, however, but
also on First Amendment grounds.
That is, interior design, as a form of artistic expression, is
historically protected by the First Amendment. Indeed, interior
designers are measured primarily on the value of their aesthetic
expression, not for any technical knowledge or expertise. This type of
artistry is a matter of taste, and the designer and client usually
arrive at the end result through collaboration and according to personal
preferences. Thus, the designer-client relationship has little in
common with traditionally regulated professions such as medicine, law
and finance, where bad advice can have real and far-reaching
consequences—but even then, the Supreme Court has emphasized the First
Amendment implications of placing “prior restraints” on expression
through burdensome licensing schemes.
Instead of following that precedent, however, the circuit court
carved out a constitutionally unprotected exception for “direct
personalized speech with clients.” Florida’s “public safety”
justification is similarly weak, given that the state has presented no
evidence of any bona fide concerns that substantiate a burdensome
licensing scheme that includes six years of higher education and a
painstaking exam—instead relying on cursory allegations that, for
example, licensed designers are more adept at ensuring that fixture
placements do not violate building codes.
Finally, the Eleventh Circuit’s ruling disregarded the infinite array
of auxiliary occupations the Florida law subjects to possible criminal
sanctions: wedding planners, branding consultants, sellers of retail
display racks, retail business consultants, corporate art consultants,
and even theater-set designers could all get swept in. The state has
already taken enforcement actions against a wide spectrum of people who
are not interior designers, including office furniture dealers,
restaurant equipment suppliers, flooring companies, wall covering
companies, fabric vendors, builders, real estate developers, remodelers,
accessories retailers, antique dealers, drafting services, lighting
companies, kitchen designers, workrooms, carpet companies, art dealers,
stagers, yacht designers, and even a florist. This dragnet effect also
suggests that the law is too broad to survive constitutional scrutiny.
The Court will likely decide by the end of the year (or early 2012) whether to take this case of Locke v. Shore.
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