Josh Wexler and Anne Jordan Blanton, 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.
New Orleans issues permits to street vendors selling food, flowers, razor blades, and pencils, but not books. And anything that's not explicitly permitted is forbidden, city officials said.
After banging their heads against the bibliophobic bureaucracy for more than a year, Wexler and Blanton challenged the city's bookselling ban in a federal lawsuit filed on April 8. A week later, U.S. District Judge Stanwood R. Duval Jr. issued a temporary restraining order allowing them to begin selling books pending final resolution of their case. Contrary to what city officials had told Wexler and Blanton, Duval said, sidewalk bookselling appears to be legal under the city's vending ordinances.
Even if it isn't, Wexler and Blanton's attorneys at the Washington, D.C.-based Institute for Justice argue that a bookselling ban violates the First Amendment. The suit also charges that the ban arbitrarily interferes with Wexler and Blanton's economic liberty. In addition to the 14th Amendment's guarantees of due process and equal protection, the suit cites the Privileges or Immunities Clause.
That constitutional provision, which prohibits states from abridging "the privileges or immunities of citizens," 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. Although the issue in that case (the right to travel) was far afield from bookselling, the Institute for Justice hopes the clause can be revived as a protection for entrepreneurs of all kinds 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 Institute for Justice attorney Dana 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."