If you want to play a guitar on a street corner in St. Louis, you have to get a license. That’s not so unusual—but what is unusual is that unlike just about any other place, in St. Louis you also have to audition before a city bureaucrat, who gets to decide whether or not you’re good enough. This audition requirement doesn’t appear in the City Ordinances—and last week, city leaders removed any mention of it from their website. But for years now, St. Louis officials have required musicians and other performers to try out for a license. And since the audition requirement isn’t written down anywhere, bureaucrats can decide to grant or withhold a license for any reason or for no reason at all.
The ACLU of Eastern Missouri has filed a lawsuit challenging the constitutionality of the audition requirement as a violation of the First Amendment. But in a brief filed late Friday, PLF argues that the requirement also violates the right of entrepreneurs to know clearly what standards govern licenses for economic activity. Too often, government restricts the rights of businesspeople through licensing standards that are vague or unintelligible, leaving entrepreneurs unable to know what kinds of businesses are or are not allowed. Take our Nevada mover lawsuit, for example. If you want to run a moving company in Nevada, you have to first prove to the government that a new moving company would “foster sound economic conditions”—a phrase that isn’t defined anywhere, and which the head of the Nevada Transportation Authority recently admitted he doesn’t understand.
In a famous 1886 case, Yick Wo v. Hopkins, the Supreme Court struck down a San Francisco ordinance that allowed inspectors to decide who could or could not operate a laundry business in the city. The result was subjective and ad hoc decisions about who could run such businesses—and given the pervasive anti-Chinese racism of that time and place, the result was that many Chinese immigrants were barred from earning a living for “[n]o reason whatever, except the will of the supervisors.” This the Court found unconstitutional: “the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”
As we argue in our brief, even aside from First Amendment considerations, vague and undefined laws violate every person’s right to due process of law. And our brief notes a few interesting and amusing cases in which courts have protected economic liberty against vague and indefinite regulations. In a 1932 case called Tebbetts v. McElroy, a federal judge in Missouri held that a fire chief violated the Due Process Clause when he abruptly shut down a “walking contest” by declaring that the building was a fire hazard. A “walking contest” consisted of people walking around in a square until they couldn’t walk anymore. “Marvelous to say,” wrote the judge, “people seem to be entertained by the spectacle.” Bizarre as that might be, government officials are not simply allowed to “say to any person, ‘Your business is closed,’” without some kind of hearing or fair procedure. Such an arbitrary power would undermine the principle that “this is a government of laws, and not of men.”
In a 1976 Oregon case, a state court struck down a law that required bars to have a particular kind of “atmosphere.” This requirement, the court found, was so vague and amorphous that nobody could know what it meant. The “atmosphere” of a bar, wrote the judges, could only be described by “a Robert Service, Ernest Hemingway, or even Arlo Guthrie,” but without objective standards, government officials could not determine whether “the atmosphere” of a business satisfied the requirements.
Court decisions on the “void for vagueness” doctrine are most common in the First Amendment context. But the requirements of clarity and fairness are just as important in cases that involve what Justice Douglas called “the most precious liberty that man possesses”: the right to earn a living.
(By the way, this is not the first time PLF has joined forces with the ACLU. In 2005, we filed a joint brief opposing the abuse of eminent domain in Michigan.)