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.
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