New Mexico Interior Designers File First Amendment Lawsuit, Take on State’s “Titling” Law

WEB RELEASE: September 7, 2006

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Arlington, Va.—The State of New Mexico forbids individuals who practice interior design from calling themselves interior designers unless they first obtain an expensive and increasingly difficult-to-secure government license.

New Mexico law does not prevent anyone from working as an interior designer.  Instead, the law achieves its anti-competitive purpose by dictating who may call themselves “interior designers” or use the term “interior design” to describe what they do.  Such “titling laws” are part of a larger effort by certain members of the interior design community to suppress competition by suffocating would-be competitors with government regulations.

On September 7, 2006, the Institute for Justice, a national public interest law firm that defends free speech and the rights of entrepreneurs, filed suit in the U.S. District Court for the District of New Mexico on behalf of two entrepreneurs challenging the New Mexico Interior Design Board’s censorship law as a violation of free speech rights protected by the First Amendment to the U.S. Constitution.

“The government has no business preventing interior designers from providing truthful information about their services to potential customers,” said Jennifer Perkins, an Institute for Justice staff attorney.  “The way to make sure consumers understand the services and qualifications they’re getting is through more truthful speech, not less.”

Clark Neily, an Institute for Justice senior attorney, added, “This law is simply the first step in an attempt by industry insiders to impose one-size-fits-all licensing requirements on a harmless occupation for no good reason whatsoever.

A case study released today by the Institute for Justice (IJ) documents a long-running campaign by the American Society of Interior Designers (ASID) and other industry organizations to increase regulation of the interior design industry in order to “increase the stature of the industry” and put would-be competitors out of business.  The nationwide push for more regulation of interior designers has come not from the public or the government, but from members of the industry itself.  (To read the study, visit Designing Cartels: How Industry Insiders Cut Out Competition )

Only New Mexico and four other states license the use of the terms “interior design” and “interior designer,” thereby granting certain favored members of the industry a monopoly on the use of those terms in their business names, their advertising, their websites and so on.  The competitive advantages of such a speech monopoly are obvious:  anyone who goes looking for an “interior designer” on the Internet or the Yellow Pages in New Mexico will find only government-licensed cartel members, while overlooking scores of highly capable designers who have not met the State’s arbitrary speech-licensing requirements.

“Americans’ right to freely express themselves includes the right to truthfully provide information to potential customers and clients,” Perkins stated.  “That right, enshrined in the First Amendment, cannot simply be brushed aside by States seeking to promote the anti-competitive interests of the interior design cartel.  Simply put, IJ’s lawsuit will demonstrate that the First Amendment is more than mere window dressing when it comes to interior designers.”

Founded in 1991, the Virginia-based Institute for Justice has represented entrepreneurs nationwide who successfully fought arbitrary government regulation, opening up long-closed markets and securing free speech rights.  These include:

• Swedenburg v. Kelly—Representing Virginia and California vintners as well as New York wine consumers, the Institute for Justice persuaded the U.S. Supreme Court to declare unconstitutional New York State’s laws that barred the interstate direct shipment of wine to New York consumers.  IJ also persuaded the 2^nd U.S. Circuit of Court of Appeals to enforce the First Amendment by striking down a prohibition on advertisements and solicitation for alcoholic beverages by anyone other than licensed retailers.
  
  
• Craigmiles v. Giles—This IJ suit led a federal court to strike down Tennessee’s casket-sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the U.S. 6^th Circuit Court of Appeals and not appealed.  This marked the first federal appeals court victory for economic liberty since the New Deal.
  
  
• Taucher v. Born—The Institute for Justice persuaded the U.S. District Court for the District of Columbia to enforce the First Amendment by striking down a regulation issued by the Commodity Futures Trading Commission that would have required publishers of financial newsletters and Internet websites to register as commodity trading advisors.
        
• ForSaleByOwner.com Corp. v. Zinnemann—The Institute for Justice persuaded the U.S. District Court for the Eastern District of California to enforce the First Amendment and strike down the State of California’s attempt to impose real estate broker licensing requirements on an informational website.
        
• Wexler v. City of New Orleans—The Institute for Justice persuaded the U.S. District Court for the Eastern District of Louisiana to enforce the First Amendment by striking down an ordinance that prohibited booksellers from selling books on city sidewalks without a permit.

Neily concluded, “Protectionist government licensing laws like New Mexico’s do nothing to protect consumers and instead limit choices, drive up costs, and eliminate fair competition in the marketplace.  They have no place in a nation that prides itself on securing economic liberty and free speech as birthrights.”