Erica Smith


Senior Attorney

Erica Smith serves as a senior attorney with the Institute for Justice. She joined the Institute in August 2011 and her work focuses on economic liberty, educational choice, free speech, and property rights.

Erica fights to protect economic liberty. Her primary focus has been on “food freedom”: the right of people to buy, sell, and share the food of their choice. In Kivirist v. Wisconsin Department of Agriculture, Erica protected the rights of Wisconsin’s home bakers to legally sell their goods without fear of fines or jail time. Kivirist was featured by CBS Sunday MorningCBS This Morning, and NPR’s Morning Edition. Erica also successfully defended the rights of homemade food producers (also known as “cottage food” producers”) in Minnesota and North Dakota. Her challenge against New Jersey—the last state to ban cottage food—is still pending and has been featured in the New York Times. Erica is also challenging local restrictions on using “little free pantries” to feed the homeless. In addition, Erica advises legislatures nationwide on cottage food reform and has helped numerous states improve their laws, including Kentucky, Maryland, Nebraska, West Virginia, and Wyoming.

Erica’s economic liberty work also fights unfair employment barriers for those with a criminal record. For instance, Erica recently challenged Pennsylvania’s requirement that would-be cosmetologists prove that they have “good moral character” before they can get a license to work. The court struck the law down as a violation of equal protection.

Erica protects the right of families to choose the education that best meets their children’s needs. Most recently, Erica was co-lead counsel in the U.S. Supreme Court case, Espinoza v. Montana Department of Revenue, where the Court held that the government violates the Free Exercise Clause when it excludes religious schools and the families who want to attend them from an otherwise available school choice program.  Erica was also lead counsel in Asociación de Maestros v. Departamento de Educación, where she successfully defended the constitutionality of Puerto Rico’s school voucher program at the territory’s supreme court. Likewise, Erica helped protect Georgia and New Hampshire’s tax-credit scholarship programs before each state’s supreme court. On the legislative front, Erica helped pass South Dakota’s tax-credit scholarship program.

Erica’s free speech work focuses on protecting commercial signs, political protest signs, and murals. She has successfully defended a family’s right to use signs to advertise its gyma cowboy bar’s right to advertise using a mural, a video game store’s right to advertise using a 9-foot inflatable Mario, and a veteran-owned business’ right to protest the illegal taking of its land. Erica’s free speech work has been featured in USA TodayNPR, the National APWashington Post, as well as many state and local papers.

Before joining IJ in 2011, Erica served as a law clerk for the Honorable Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina. Erica received her law degree cum laude from the University of Pennsylvania Law School in 2010. Erica received her undergraduate degree summa cum laude from Stony Brook University’s Honors College in 2007. Erica is originally from Bay Shore, NY.

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