Should You Need a License to Help Someone Find an Apartment?
Kansas City Premier Apartments v. Missouri Real Estate Commission is quite similar to the occupational licensing case of Locke v. Shore, in which Cato also recently filed a brief, except that the speech-licensing regulation here concerns not artistic expression but rather the dissemination of consumer-demanded commercial information — specifically, rental property listings that are free to the public.
The Missouri Real Estate Commission, acting on a complaint by a licensed realtor, decided that Kansas City Premier Apartments, which provides local rental listings, was acting as an unlicensed real estate broker and was therefore subject to fine and even criminal prosecution. (Before KCPA began operations, it had asked the Commission whether it needed a license and did not receive a clear answer other than that it was a “grey area” of law.)
KCPA challenged the Commission’s decision on First Amendment grounds, but the trial court found it to be constitutional without giving a reason for its conclusion. The Missouri Supreme Court affirmed the trial court after simply presuming the constitutionality of the speech restriction — contrary to the U.S. Supreme Court holding in Bolger v. Youngs Drug Products Corp. that “[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it” — and placing the burden of proving unconstitutionality on KCPA.
Cato has now joined the Pacific Legal Foundation on a brief supporting KCPA’s request that the U.S. Supreme Court hear the case. Our brief notes that “this case combines the nationally important commercial speech issue with the equally nationally important question of the extent to which the Constitution tolerates occupational licensing.” We explain the difficulties that the Court’s “commercial speech doctrine” has caused and argue for a movement toward greater protection for collective and commercial speech, and away from a confusing four-part test established in a 1980 case called Central Hudson.
As in Locke, this latest case raises the question of whether occupational licensing schemes that have an effect on speech are constitutional. Also as in Locke, an infinite array of professionals and ordinary people could get caught up in this regulation, including even a friend helping another friend find an apartment.
Beyond the technical legal points, the case implicates broader policy issues such as the right to earn a living and the impact that speech monopolies have on consumers. Indeed, the consumer impact may be even more apparent here than in other occupational licensing cases because so many people struggle to find affordable apartments and other rentals in this economy — not to mention over the course of their lives.
The Supreme Court will decide early in the new year whether to hear Kansas City Premier Apartments v. Missouri Real Estate Commission.
We Aren’t Exaggerating When We Rail Against Threats to Economic Liberty
Oregon officials told a 7-year-old with a lemonade stand that she needed to obtain a temporary restaurant license or incur a fine.
I’m rendered speechless, but Josh Blackman exploits the “teaching moment”:
If you are generally opposed to any notion of the right to pursue an honest living, ask yourself, why does it bother you so much that this little girl cannot sell lemonade. Then, ask yourself what you think about other regulations that stifle the entrepreneur. This story does not tug on our heart strings simply because she is adorably selling lemonade for 50 cents a cup (suggested price) at a fair. It tugs on our heart strings because the state is unnecessarily clamping down on this little girl’s ability to make some money.
More from Tim Sandefur.
Is the Supreme Court Conservative?
In my last two posts I described how the New York Times misunderstands the Constitution and highlighted Reason’s great new article comparing conservative and libertarian theories of constitutional interpretation. Well, now I have a chance to put those topics together, in response to yesterday’s big front-pager entitled “Court Under Roberts Is Most Conservative in Decades.”
Times Supreme Court reporter Adam Liptak — generally a sharp and honest broker — surveys some new political science literature and concludes, among other things, that since John Roberts became Chief Justice five years ago, the Court has been moving (modestly) to the right and is now “the most conservative one in living memory.” Ed Whelan debunks both of these empirical claims at NRO’s Bench Memos blog — I disagree with Ed on some legal issues, not least unenumerated rights, but his fisking is worth a read – and I want to add two broad points.
First, the claim that “all” (or even most) judicial decisions can be assigned an ideological value is simply laughable. Are all decisions favoring criminal defendants, unions, and people claiming discrimination or civil rights violations ”liberal” while those favoring prosecutors, employers, and the government “conservative” (as the scholars who maintain the database maintain)? What about union members suing unions or large corporations suing each other? What if the criminal defendant is a Fortune 500 CEO (like Conrad Black and Jeffrey Skilling in this past term’s ”honest services fraud” cases)? What about “reverse” racial discrimination claims like those at issue in Ricci v. DeStefano (the New Haven firefighters case)? What about an oil company suing the EPA? A financial services company suing the SEC (or vice-versa)?
And what about civil rights claims involving the Second Amendment, or the Fifth Amendment’s Takings Clause, or the right to earn an honest living? Are those not ”real” civil rights claims? What if it’s poor people losing their houses to a big developer who promises a town it will create jobs and increase tax revenues? What if it’s black hair braiders who can’t set up their shops without passing haridressing license exams requiring expertise only with white hair styles? What if it’s women who want to buy and carry handguns to defend themselves on their walks home in a dangerous neighborhood? Attempts to code such cases — like attempts to decide them based on “empathy” or support for the “little guy” – are bound to fail.
Second – and this ties together all the criticisms – the labeling of decisions (and courts!) as “conservative” and “liberal” ultimately boils down to results-based analysis that equates law with politics. The liberal political position is to favor abortion rights, separation of church and state, gun control, wealth redistribution, economic regulation, and racial preferences, and to disfavor the death penalty. It is then obvious that court rulings against those positions must be “conservative.” Add in the fact that the researchers performing all these analyses –and reporters writing about them — are themselves quite “liberal” and it becomes all the more alarming when the Supreme Court moves in a “conservative” (= wrong) direction.
Sure, You Can Get a Business License — If Your Competitors Approve
Our friends at the Pacific Legal Foundation have filed another important suit in the battle for the right to earn an honest living. PLF senior attorney (and Cato adjunct scholar) Tim Sandefur has the scoop:
Michael Munie is a St. Louis businessman who’s been in the moving business since he was 16 years old. He has a federal license that lets him move people’s household goods from one state to another. And he has a state license that allows him to move things within St. Louis. But he’s not allowed to move things from St. Louis to anywhere else in Missouri unless he gets permission from his competitors first.
That’s right—Missouri law dictates that whenever a person applies for a license to run a moving business, the state’s Department of Transportation must notify all the existing moving companies and give them the chance to object. If they do—which, of course, they always do—the applicant must prove that there’s a “public necessity” for a new moving company. What does “public necessity” mean? Nobody knows. There are no standards, no rules of evidence, no nothing.
Read the rest and find out more here. Cato doesn’t litigate, of course — other than filing amicus briefs – but we certainly support those that do, including PLF, the Institute for Justice, the Goldwater Institute, the Mackinac Center, and many others.
Virginia Messes With Yoga Instructors’ Chi
Not to be too much of a megaphone for the Institute for Justice, but the “merry band of litigators” has struck again, this time going after the rigid rules stopping Virginians from finding inner peace. It seems that in the fair commonwealth, you need a permit to teach yoga, which process entails paying $2500 and getting your “curriculum” approved by state bureaucrats, as well as other barriers to entry. For more details, see IJ’s case page and read this editorial in the Richmond Times-Dispatch.
Also, check out IJ’s video:
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