Josh Wexler and Anne Jordan Blanton, twentysomething graduates of New York University who hope to own a neighborhood bookstore in New Orleans one day, tried to start small by selling books from a sidewalk table. The city said they would need a permit. The city also said they could not get a permit.
It turned out New Orleans had permits for street vendors selling food, flowers, razor blades, shoelaces, candles, and pencils—but not books. And anything that wasn't explicitly permitted was forbidden.
After banging their heads against the bibliophobic bureaucracy for more than a year, Wexler and Blanton challenged the city's bookselling ban in federal court last April. The other day, when U.S. District Judge Stanwood R. Duval Jr. ruled that the ban violated the First Amendment, it was a victory not only for freedom of speech but for the right to pursue a livelihood without arbitrary interference from the government.
Wexler and Blanton came to New Orleans from New York, where they had worked in bookstores and browsed the city's outdoor book stands. They'd heard that you didn't need a permit to sell books on the sidewalk in New York, and they figured it couldn't be much harder in famously tolerant and literary New Orleans.
They were wrong. As an Associated Press reporter put it, "The city lets people sip cocktails on the streets, but it does not allow the sale of books on the sidewalks." So Wexler and Blanton, who had amassed hundreds of books but now had nowhere to sell them, turned to the Institute for Justice, a public interest law firm in Washington, D.C., that specializes in defending economic freedom.
"We're not attempting to cause any trouble or get anything special from the government," Blanton told the A.P. "We just want to earn an honest living sharing our love of books."
In response to the lawsuit that the Institute for Justice filed on Wexler and Blanton's behalf, Judge Duval first issued a temporary restraining order that allowed them to start selling books from a table at the corner of Esplanade and Decatur streets. Now he has issued a permanent injunction barring the city from enforcing its ban.
"The First Amendment applies in this case because book selling is a form of expression," Duval wrote. "It has long been settled that the sale or distribution of literature in a public sidewalk is protected speech."
Duval noted that the city had presented no evidence to support its claim that a book table would create special congestion problems. "One cannot argue that the ordinance, with its absolute prohibition on book selling, is narrowly tailored to serve a significant government interest," he said. "Hence the ordinance must fail as a reasonable time, place and manner restriction."
Because he decided the case on First Amendment grounds, Duval did not address the other arguments in the Institute for Justice lawsuit. Most daringly, I.J. attorney Dana Berliner cited the provision in the 14th Amendment that prohibits states from abridging "the privileges or immunities of citizens," including the ability to pursue a livelihood.
The Privileges or Immunities Clause was eviscerated in 1873, when the U.S. Supreme Court upheld a government-enforced slaughterhouse monopoly—established, fittingly enough, by the city of New Orleans. The clause was given up for dead until a 1999 Supreme Court decision that relied on it to overturn California's restrictions on welfare benefits for new residents. The Institute for Justice hopes the clause can be revived as a protection for entrepreneurs facing anti-competitive regulations.
"Hundreds of cities limit street vending of books and other goods in all kinds of irrational ways—allowing some businesses and arbitrarily excluding other perfectly harmless ones," says Berliner. "Rather than focusing on simple vending rules to protect health, safety and traffic flow, most cities impose whatever limits and costs happen to strike official fancy."
Berliner notes that puzzling entry barriers are by no means limited to street vendors; licensing requirements apply to more than 500 occupations in the United States. "For many of these occupations, from shorthand court reporter to fence installer," she says, "the rationale for licensing is nonexistent."
Wexler and Blanton were lucky their business had something to do with the First Amendment. The broader challenge is to extend the logic of this case—the idea that the government needs a good reason to limit our freedom—so that people can earn an honest living without running into senseless regulatory obstacles.