Erica Smith


Senior Attorney

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

For years, Erica has protected the right of families to choose the best education for their children. Most recently, Erica was co-lead counsel in the U.S. Supreme Court case, Espinoza v. Montana Department of Revenue, where she represented families who wanted to use scholarships to send their children to the schools of their choice. The Court ruled in favor of the families and held that the government violated the Free Exercise Clause when it denied the families scholarships just because they wished their children to attend religious schools. 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 also fights to protect economic liberty. Her primary focus has been on “food freedom”: the right of people to buy, sell, and eat 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 national media outlets, including CBS Sunday MorningCBS This Morning, and NPR’s Morning Edition. Erica also successfully defended the rights of Minnesotan home bakers and canners to be free from onerous and arbitrary restrictions. Erica’s work on behalf of food freedom also took her to New Jersey and North Dakota, where she sued regarding each state’s ban on selling a variety of homemade foods; both cases are pending, with the New Jersey case having been featured in the New York Times. Most recently, Erica challenged local restrictions on sharing food with the needy in Washington State. In addition, Erica’s role as a legislative advocate has led to numerous states improving their homemade food laws, including Wyoming, Maryland, Kentucky, and West Virginia.

Erica’s economic liberty work has also fought 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.

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 gym, a 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 Today, NPR, the National AP, Washington 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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