Author: Timothy Sandefur
One of the places where constitutional law is most confused is at the intersection of economics and expression. The First Amendment bars the government from abridging the freedom of speech, but in today’s world of pervasive government control over economic choices, it’s inevitable that many laws and regulations intrude on the freedom of speech. This is increasingly true in our ever-more service-oriented economy, where the focus of economic productivity increasingly centers on consultation or design, as opposed to manufacturing and construction. Many people today earn their living through the “talking professions” or the “helping professions”—everything from life counselors and psychologists to dietetic advisors and interior designers. And since courts have backed away from protecting economic liberty to such an extreme degree, legislatures and regulators are tightening their controls over expressive conduct that should be protected by the Constitution.
That’s the focus of the brief we filed today in the U.S. Supreme Court in the case of Locke v. Shore, which challenges the constitutionality of a Florida law that makes it a crime to practice interior design without a state license—a license that costs tens of thousands of dollars and a college degree.
You read that right: in Florida, you must have the government’s permission to suggest where a person should hang drapes or place a sculpture.
But giving someone advice about aesthetics is a type of expression, and the First Amendment forbids the government from requiring a license before you express yourself. Yet the Eleventh Circuit Court of Appeals ruled that Florida’s law only regulates commercial activity, and is therefore not subject to the skeptical review that courts apply to laws barring expression. Instead, it’s subject to the low-yield “rational basis” standard, under which the government virtually always wins. (You can read PLF’s brief before the Eleventh Circuit here.)
Now our friends at IJ have asked the Supreme Court to take the case, and with some generous pro bono legal help, PLF and the Cato Institute filed this friend of the Court brief urging the justices to review the case.
There is no sensible distinction between the right to freedom of expression and the right to earn a living. Both types of freedom are central to individual flourishing, are deeply rooted in our nation’s history and tradition, and were meant by the Framers to be protected under our Constitution. Yet today’s law radically distinguishes between the two, relegating the freedom to make economic choices to the bottom drawer, to be ignored by courts—and giving greater protection to expressive activities. When the expression is an economic activity, and vice-versa—when a person is hired to express him- or herself—the whole fallacious intellectual construct of modern “standards of scrutiny” comes crashing down. It’s time for courts to take economic liberty more seriously—and in doing so, protect more expressive freedom, also.