U.S. Supreme Court Considers Whether to Hear Important Free Speech Case Appeal Asks if First Amendment Protects Right to Speak for a Living

J. Justin Wilson
J. Justin Wilson · January 6, 2012

Arlington, Va.Today the U.S. Supreme Court is scheduled to consider whether to hear a First Amendment challenge by the Institute for Justice (IJ) to Florida’s interior design licensing law. IJ represents three interior designers, Eva Locke, Pat Levenson and Barbara Gardner and the National Federation of Independent Business.

Florida prohibits aspiring interior designers from offering even harmless advice about such mundane subjects as the placement of office furniture unless they first get a government license, a process that takes six years and costs thousands of dollars.

If heard by the Court, Locke v. Shore may have national implications for countless Americans who earn their living in occupations that consist primarily of speech, such as journalism, consulting and interior design.

Unfortunately, courts across the nation have been holding that occupational speech is not protected by the First Amendment, even in harmless fields like interior design. In 2010, a federal judge struck down struck down a part of Florida’s law that restricted advertising by residential interior designers, but upheld the requirement that nonresidential interior designers get a government license. The 11th U.S. Circuit Court of Appeals later affirmed that decision, holding that the First Amendment does not protect interior designers’ “direct, personalized speech with clients.”

IJ Senior Attorney Clark Neily said, “Virtually everything an interior designer does—from consulting with clients to drawing up space plans—is speech that should be and is protected by the First Amendment.”

As more and more Americans are earning their living in occupations that consist primarily of speech, Locke v. Shore gives the High Court the first opportunity in 25 years to give much-needed guidance on the First Amendment status of “occupational speech.” If the Court accepts the case for review, it will have the chance to make clear the First Amendment remains relevant in the information economy.

“Numerous First Amendment scholars have noted that the constitutional protection afforded to occupational speech is one of the most important unanswered questions of First Amendment law,” said IJ Attorney Paul Sherman. “Without further guidance from the Supreme Court, lower courts are likely to continue issuing confused decisions that fail to give occupational speech the protection it deserves.

Licensing of occupational speech is a growing nationwide problem; in recent years states and municipalities have imposed burdensome occupational licensing requirements on harmless “speaking occupations” such as tour guides in New Orleans, hairbraiding instructors in Utah and yoga-teaching trainers in Virginia.

“Florida is one of only three states in the entire country that regulate the practice of interior design, even though the state has admitted it has no evidence that its interior design law benefits the public in any demonstrable way,” continued Neily. “The Institute for Justice has empirical research that shows how such restriction on the free speech of interior designers harms consumers and would-be entrepreneurs alike. Government cannot restrict speech for no good reason.”