IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2009
No. 08-50231
Charles R. Fulbruge III
Clerk
VICKEE BYRUM; JOEL MOZERSKY; VERONICA KOLTUNIAK; NANCY
PELL
Plaintiffs-Appellants
v.
GORDON E LANDRETH, in his official capacity as Chairman of the Texas
Board of Architectural Examiners; ALFRED VIDAURRI, JR, in his official
capacity as Vice-Chairman of the Texas Board of Architectural Examiners;
ROSEMARY A GAMMON, in her official capacity as Treasurer of the Texas
Board of Architectural Examiners; ROBERT KYLE GARDENER, in his
official capacity as member of the Texas Board of Architectural Examiners;
JANET PARNELL, in her official capacity as member of the Texas Board of
Architectural Examiners; PETER L PFEIFFER, in his official capacity as
member of the Texas Board of Architectural Examiners; DIANE
STEINBRUECK, in her official capacity as member of the Texas Board of
Architectural Examiners; PEGGY LEWENE VASSBERG, in her official
capacity as member of the Texas Board of Architectural Examiners; JAMES S
WALKER II, in his official capacity as member of the Texas Board of
Architectural Examiners
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
No. 08-50231
Before JONES, Chief Judge, JOLLY, Circuit Judge, CARDONE, District Judge * .
EDITH H. JONES, Chief Judge:
In this commercial speech case, the appellants would prevent Texas from
enforcing its interior design “titling” law, which prohibits unlicensed
practitioners from using the terms “interior designer” or “interior design” to
describe their trade and the services they provide but does not limit who may
practice interior design. The district court denied their motions for preliminary
injunction and summary judgment. We have jurisdiction over the former order,
28 U.S.C. § 1292(a), but not over the latter except by exercising pendent
appellate jurisdiction.
Because the district court abused its discretion by denying the preliminary
injunction, we reverse for entry of relief. We decline, however, to exercise
pendent appellate jurisdiction to resolve the appellants’ summary judgment
motion.
I. Background
The plaintiffs are experienced and accomplished interior designers.1 Texas
law does not interfere with their professional practice, T EX. O CC. C ODE
§1051.604, but without being licensed, they may not advertise or represent
themselves using the words “interior designer” or “interior design.”2 See T EX.
*
United States District Judge, Western District of Texas, sitting by designation.
1
Vickee Byrum has operated a successful interior design business for over a decade and
now owns her own interior design business. Joel Mozersky has been working as an interior
designer for a decade now. He was named best interior designer by Citysearch website, and
his work has been referenced in national publications such as Newsweek and local publications
such as Austin Monthly. Veronica Koltuniak worked in set decoration and design for television
shows in Los Angeles before beginning work as an interior designer there in 1990. She moved
to Austin in 2000 and now runs owns her own interior design business. Nancy Pell has
worked in the interior design field for more than thirty years. In 1994, she and her husband
opened their own interior design business.
2
Texas law defines interior design as the:
2
No. 08-50231
O CC. C ODE §1053.151; 22 T EX. A DMIN. C ODE § 5.131.3 Since 1991, Texas has
required that to become licensed, a prospective interior designer must graduate
from an educational program recognized and approved by the Texas Board of
Architectural Examiners (“TBAE”); possess appropriate professional experience;
pass an examination adopted by the TBAE; and pay the required fee. T EX. O CC.
C ODE § 1053.152, .154-.155; 22 T EX. A DMIN. C ODE §5.31. While all of the
plaintiffs have been practicing interior design for some time, none has qualified
educationally to sit for the exam.
The appellants sued Texas officials, members of the TBAE, to challenge
these Texas “titling” laws for infringing their First Amendment right to engage
in commercial speech. The parties filed cross motions for summary judgment,
and the plaintiffs requested a preliminary injunction. Based on the magistrate
judge’s report and recommendations, the district court denied the motion for
preliminary injunction and held that neither party met their respective
evidentiary burdens for summary judgment. The interior designers have
appealed.
(A) identification, research, or development of a creative solution to a
problem relating to the function or quality of an interior environment;
(B) performance of a service relating to an interior space, including
programming, design analysis, space planning of non-load-bearing interior
construction, and application of aesthetic principles, by using specialized
knowledge of interior construction, building codes, equipment, materials, or
furnishings; or
(C) preparation of an interior design plan, specification, or related document
about the design of a non-load-bearing interior space.
TEX . OCC . CODE §1051.001(3).
3
Violation of the law is a class C misdemeanor. TEX . OCC . CODE §1053.351. The Texas
Board of Architectural Examiners may also assess an administrative penalty not to exceed
$5,000. TEX OCC . CODE §§1051.451-.452.
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No. 08-50231
II. Standard of Review
“Although the ultimate decision whether to grant or deny a preliminary
injunction is reviewed only for abuse of discretion, a decision grounded in
erroneous legal principles is reviewed de novo.” Women’s Med. Ctr. of Nw.
Houston v. Bell, 248 F.3d 411, 419 (5th Cir. 2001). Whether free speech rights
have been infringed presents a mixed question of law and fact reviewed de novo,
and when a preliminary injunction turns on a mixed question of law and fact, it,
too, is reviewed de novo. Speaks v. Kruse, 445 F.3d 396, 399 & n.8 (5th Cir.
2006).
III. Discussion
A. Preliminary Injunction
A preliminary injunction is an extraordinary remedy that should only
issue if the movant establishes:
(1) a substantial likelihood of success on the merits, (2) a substantial
threat of irreparable injury if the injunction is not issued, (3) that
the threatened injury if the injunction is denied outweighs any
harm that will result if the injunction is granted, and (4) that the
grant of an injunction will not disserve the public interest.
Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006). The district court found
that the appellants failed to show a likelihood of success on the merits. There
appears to be no dispute over the appellants’ entitlement to relief under the
other criteria if their First Amendment rights were violated. See Elrod v. Burns,
427 U.S. 369, 373, 96 S. Ct. 2673, 2689-90 (1976).
Regulations of commercial speech must comply with the Central Hudson
test. See 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 500, 116 S. Ct. 1495,
1507 (Stevens, J., plurality opinion) and id. at 528, 116 S. Ct. at 1521 (O’Connor,
J., concurring) (applying Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n
of N.Y., 447 U.S. 557, 563-64, 100 S. Ct. 2343, 2350 (1980)). The first part of the
test is really a threshold determination whether the speech is constitutionally
4
No. 08-50231
protected because it is either true or only potentially misleading. Thompson v.
Western States Med. Ctr., 535 U.S. 357, 367, 122 S. Ct. 1497, 1504 (2002). If the
speech is protected, the regulation must satisfy the following three
requirements: (1) the asserted government interest in the regulation must be
substantial; (2) the regulation must directly advance the governmental interest
served; and (3) the regulation may not be broader than necessary to advance
that governmental interest. Cent. Hudson, 447 U.S. at 566, 100 S. Ct. at 2351.
In a single memorandum opinion, the district court first addressed the
parties’ cross-motions for summary judgment concerning the Central Hudson
factors. The court expressly agreed with the magistrate judge that the State did
not bear its summary judgment burden to prove either that the appellants’
speech lacked First Amendment protection; or that the titling statute directly
advances the State’s interest in consumer protection. The district court adopted
without discussion the magistrate judge’s finding, on Central Hudson prong two,
that prohibiting appellants’ speech would directly advance the State interest,
and on Central Hudson prong three, that the State lacked proof on the “fit”
between the speech prohibition and the State’s interest.
The State’s failure to carry its summary judgment burden did not,
however, persuade the district court to grant summary judgment to appellants
or award preliminary injunctive relief. As the court perfunctorily put it:
. . . Defendants’ failure to prevail on their summary judgment
motion does not indicate Plaintiffs prevail on theirs, and the
conclusion Plaintiffs have succeeded on the merits is therefore
premature. Accordingly, the Magistrate Judge properly
recommended denying Plaintiffs’ motion for preliminary injunction
because they have not shown a substantial likelihood of success on
the merits.
Unfortunately, the district court’s reasoning is confused. A plaintiff is not
required to prove its entitlement to summary judgment in order to establish “a
substantial likelihood of success on the merits” for preliminary injunction
5
No. 08-50231
purposes. See ICEE Distribs., Inc. v. J&J Snack Foods Corp., 325 F.3d 586, 596
n.34 (5th Cir. 2003) (distinguishing actual success from likelihood of success on
merits). The confusion is even more pronounced because the State had the
burden to prove all elements of the Central Hudson test. Although the plaintiffs
bear the burden on the preliminary injunction factors, “[i]t is well established
that the party seeking to uphold a restriction on commercial speech carries the
burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770, 113 S. Ct. 1792,
1800 (1993) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20,
103 S. Ct. 2875, 2882 n.20 (1983) (internal quotation marks omitted)). Thus,
when considering the likelihood of success, the district court should have
inquired whether there is a sufficient likelihood the State will ultimately fail to
prove its regulation constitutional. See Ashcroft v. ACLU, 542 U.S. 656, 666,
124 S. Ct. 2783, 2791-92 (2004). Cf. Speaks, 445 F.3d at 400. Applying the
proper standards, we have little difficulty in concluding that appellants are
likely to succeed on their claim because the State has not shown its ability to
justify the statutes’ constitutionality.
The State first attempts to prove, contrary to the district court’s
determination, that the speech at issue is not constitutionally protected because
it is both inherently and actually misleading. See Joe Conte Toyota, Inc. v. La.
Motor Vehicle Comm’n, 24 F.3d 754, 756 (5th Cir. 1994) (citing Peel v. Attorney
Discipline Comm’n, 496 U.S. 91, 106, 110 S. Ct. 2281, 2290 (Stevens, J., plurality
opinion) and id. at 112, 110 S. Ct. 2293 (Marshall, J., concurring)). The State
advances a circular argument that the speech inherently tends to mislead
consumers. It runs: Texas created a licensing regime; therefore, unlicensed
interior designers who refer to themselves as interior designers will confuse
consumers who will expect them to be licensed. The descriptive terms “interior
designer” and “interior design” are not, however, inherently misleading. They
merely describe a person’s trade or business. The terms can be employed
6
No. 08-50231
deceptively, for example if a person does not actually practice interior design, but
the speech is neither actually nor inherently misleading. This argument also
proves too much, as it would authorize legislatures to license speech and reduce
its constitutional protection by means of the licensing alone.
The State next relies on two pieces of evidence to prove that unlicensed
interior designers who use the title are engaged in misleading speech. The
district court correctly rejected both proffers. The State offers a survey that
asked irrelevant questions concerning the respondents’ general preferences for
“licensed” professionals. The survey included five substantive questions and
seventeen demographic questions. The only question even arguably relevant to
whether the job title “interior designer” is misleading was, “if there were two
professionals offering the same service, one with a license, and one without a
license, do you think that it is deceptive or misleading or both that the licensed
and unlicensed person can use the exact same professional title?”
Unfortunately, because no definition of the qualifications of the “licensed”
professional was included, no probative value can be attached to the responses.
We are also unable to attribute probative value to a legislative report, prepared
three years before the statutes here at issue were passed, finding that some
people are confused about what type of services interior designers provide and
marshalling comments for and against licensing these occupations.
Significantly, the legislative committee that authored the report made no
suggestions for legislation of any kind.
Both the survey and the legislative report expose the fallacy in the State’s
effort to characterize certain interior designers’ professional practices as
misleading. There is no fixed definition of the covered occupations. Interior
designers may confine their work to harmonizing color schemes and selecting
furnishings for private residences; or they may design the physical layout of
commercial spaces, including aesthetic, functional and safety attributes; or they
7
No. 08-50231
may furnish services on a wide spectrum between these alternatives.4 Where no
fixed definition of the services exists, there can hardly be a claim that the public
is being misled about particular individuals’ truthfully expressed level of
expertise or services. The State has offered no evidence that the public has
actually been misled about interior design services. A strong argument exists
that allowing professionals to use these terms commercially is neither actually
nor potentially misleading. Out of deference to the State’s legislative process,
however, we infer that the use of the banned terms by unlicensed interior
designers is at most potentially misleading.5 Cf. Peel v. Attorney Reg. &
Disciplinary Comm’n., 496 U.S. 91, 109-110, 110 S. Ct. 2281, 2291-92 (1990)
(holding, in split decision, that attorney’s truthful use of “certified civil trial
specialist” was at least potentially misleading but that state’s regulation was
unconstitutional).
If the State fails to sustain any of the additional Central Hudson prongs,
the appellants have succeeded in showing a substantial likelihood of success on
the merits. Accordingly, we need address only the “critical inquiry” whether the
challenged regulation of commercial speech is “no more extensive than necessary
to further the State’s interest.” Central Hudson, 447 U.S. at 569-70, 100 S. Ct.
at 2353. Narrow tailoring, as understood for fully protected constitutional
speech, does not govern less-protected commercial speech. Board of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S. Ct. 3028, 3034-35 (1989). Instead,
the Constitution requires “a fit between the legislature’s ends and the means
4
The State legislation, in fact, contains an all-encompassing definition of interior
design, see note 2 supra, but delegated the precise nature of the licensure requirements to an
administrative agency.
5
This court has the duty to determine as a matter of law whether “the inherent
character of a statement places it beyond the protection of the First Amendment.” Peel,
496 U.S. at 108, 110 S. Ct. at 2291-92 (citing Bose Corp. v. Consumers Union, 466 U.S. 485,
498-511, 104 S. Ct. 1949, 1958-65 (1984)).
8
No. 08-50231
chosen to accomplish those ends—a fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served.” Id. at 480, 109 S. Ct. at
3035 (internal citations and quotation marks omitted).
On the record before us, we assume arguendo that the State can
demonstrate a substantial public interest in protecting consumers from engaging
unqualified or shoddy designers. Still, the regulation appears too broad to “fit”
the State’s interest. These appellants are bona fide interior designers.
Nevertheless, by allowing anyone, licensed or unlicensed, to practice interior
design, the State constrains these unlicensed but competent interior designers
to practice their trade without being able to use truthful concise terms to solicit
business. The regulation prohibits significant truthful speech. Appellants do
not propose to claim training, certification, or licenses they do not possess; they
merely wish to use the words “interior designer” or “interior design” to
accurately describe what they do.
In attempting to sustain the “fit” between its legislative goal and the
suppression of truthful speech, the State will ultimately have to distinguish
decisions from two circuits holding that similar “titling” statutes violate the First
Amendment. One case addressed a Kentucky law that did not prohibit a dentist
from practicing orthodontics, but forbade dentists to advertise orthodontic
services. Parker v. Ky. Bd. of Dentistry, 818 F.2d 504, 506, 510-511 (6th Cir.
1987). In the other, the Eleventh Circuit overturned a Florida law that did not
regulate the practice of psychology, but allowed only licensed psychologists to
advertise using a list of terms including “psychiatric social worker” and “mental
health consultant.” Abramson v. Gonzalez, 949 F.2d 1567, 1570-71, 1576 (11th
Cir. 1992).
The disjuncture between the State’s ends and means is greater here than
in the other two cases, while the proper “fit” is easier to achieve. One can posit
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No. 08-50231
a public health rationale for “fitting” the advertisement of dental or psychology
services to the licensure or training of those professionals, but it is hard to place
the advertisement of interior design services on a comparable consumer safety
plane.6 However, the State could have eliminated any constitutional challenge
here by not limiting use of the terms “interior design” and “interior designer” but
by allowing only designers who satisfy its licensing qualifications to represent
themselves as “licensed” interior designers.7
Because the State has not demonstrated a reasonable “fit” between its
regulation and the constitutional speech at issue, we reverse and remand for
entry of a preliminary injunction. See Speaks, 445 F.3d at 402.
B. Pendent Appellate Jurisdiction
The denial of the appellants’ preliminary injunction motion is an
appealable interlocutory order, 28 U.S.C. §1292(a)(1), but the denial of their
summary judgment motion is not, Meza v. Livingston, 537 F.3d 364, 366 (5th
6
Whether letters in the record suggesting that interior designers may have to follow
building safety codes and regulations promoting access to disabled people are probative, we
cannot say.
7
Four states and the District of Columbia have a similar advertising prohibition.
CONN . GEN . STAT . § 20-377l; D.C. CODE § 47-2853.103(a); FLA . STAT . § 481.223(c); 225 ILL .
COM P . STAT . 310/4(a); LA . REV . STAT . ANN . § 37:3176(A)(1); OKLA . STAT . tit. 59 § 46.41. Some
states only prevent unlicensed interior designers from advertising as “registered,” “certified,”
or “licensed” interior designers. ARK . CODE ANN . § 17-35-604(c); GA . CODE ANN . § 43-4-34(b);
KY . REV . STAT . ANN . § 323.402(1); ME . REV . STAT . ANN . tit. 32, § 220-B(1); MD . CODE ANN .,
BUS . OCC . & PROF . § 8-102; MINN . STAT . § 326.02(1); MO . REV . STAT . § 324.403; NEV . REV . STAT .
§ 623.360(1)(a); N.J. STAT . ANN . § 45:3-45; N.M. STAT . § 61-24C-2; N.Y. EDUC . LAW § 8301;
TENN . CODE ANN . § 62-2-903(a)(1); VA . CODE ANN . § 54.1-412; WIS . STAT . § 440.961 (prohibiting
untruthful use of “Wisconsin registered interior designer”). Four of these jurisdictions require
a license to practice interior design. D.C. CODE § 47-2853.103(a); FLA . STAT . § 481.223(b); LA .
REV . STAT . ANN . § 37:3176(A)(1); NEV . REV . STAT . § 623.360(1)(a)-(c). Definitions of “interior
design” differ across jurisdictions, however, and some distinguish between interior design and
interior decorating. See, e.g., LA . REV . STAT . ANN . § 37:3172(2), (3) (defining “decorator
services” and “interior design,” respectively).
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No. 08-50231
Cir. 2008).8 The appellants request us to exercise pendent appellate jurisdiction
over their denied motion for summary judgment, but we decline the invitation.
Pendent appellate jurisdiction may exist where, in the interest of judicial
economy, courts have discretion to review interlocutory rulings related to
independently appealable orders when the two are “inextricably intertwined.”
Swint v. Chambers County Comm’n, 514 U.S. 35, 43-44, 51, 115 S. Ct. 1203,
1208-09, 1212; Wallace v. County of Comal, 400 F.3d 284, 291-92 (5th Cir. 2005).
Although Swint did not foreclose pendent appellate jurisdiction in all
circumstances, the opinion emphasized that courts should not circumvent
congressional intent by grafting ad hoc appellate jurisdictional rules on the
statutory grant of jurisdiction. Swint, 514 U.S. at 46-47, 50-51, 115 S. Ct. at
1210-12. Following Swint, this court has held that, “[p]endant[sic] appellate
jurisdiction is only proper in rare and unique circumstances where a final
appealable order is ‘inextricably intertwined’ with an unappealable order or
where review of the unappealable order is necessary to ensure meaningful
review of the appealable order.” Thornton v. General Motors Corp., 136 F.3d
450, 453 (5th Cir. 1998); see also Gates v. Cook, 234 F.3d 221, 232-33 (5th Cir.
2000) (Jones, J., dissenting). None of the few cases in which this court has
exercised pendent appellate jurisdiction is substantially similar or fairly
analogous to the case before us.9
8
The appellants did not request that the district court certify this interlocutory appeal
to this court using 28 U.S.C. §1292(b).
9
See Comstock Oil & Gas Inc. v. Alabama. & Coushatta Indian Tribes, 261 F.3d 567,
571 (5th Cir. 2001) (exercising pendent appellate jurisdiction over the plaintiff’s cross appeal
of an order finding the Tribe had sovereign immunity while reviewing the Tribe’s appeal of a
denial of the tribal council members’ immunity); Gates v. Cook, 234 F.3d 221, 228 n.6 (5th Cir.
2000) (exercising pendent appellate jurisdiction over the denial of attorneys’ motion to
substitute themselves as counsel in the context of an appealable no-contact order entered
against the same attorneys); Thornton v. General Motors Corp., 136 F.3d 450, 454 (5th Cir.
1998) (exercising pendent appellate jurisdiction over a Rule 11 sanction for attorneys’ fees
while reviewing an appealable suspension from practice in front of the district court); Morin
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No. 08-50231
The appellants’ chief argument for pendent appellate jurisdiction is that
we cannot consider the preliminary injunction ruling here without also
considering the very same law and facts on which the district court premised its
denial of summary judgment. The district court denied the motions for summary
judgment because the State failed to meet its evidentiary burden to show that
the terms “interior design” and “interior designer” are inherently misleading and
that the titling law directly advances the State’s interest in consumer protection.
In addition, the district court found that neither party produced any evidence
regarding whether the restriction was more extensive than necessary to protect
the State’s interest. Because the summary judgment ruling, like the preliminary
injunction test for success on the merits, turns on the Central Hudson factors,
appellants contend the rulings are inextricably intertwined.
To support this proposition, appellants cite three cases, all of which are
distinguishable. In Lamar Advertising of Penn, LLC v. Town of Orchard Park,
356 F.3d 365 (2d Cir. 2004), Lamar requested both a preliminary injunction and
summary judgment in its First Amendment challenge to a local ordinance
restricting outdoor advertising. Id. at 369. The district court denied the
summary judgment because of mootness and plaintiffs’ lack of standing. Id. at
370. But instead of entering a final order, the district court denied Lamar’s
motion for a preliminary injunction and set a trial date. Id. When Lamar
appealed the denial of preliminary injunction, the Second Circuit exercised
v. Caire, 77 F.3d 116, 120-21 (5th Cir. 1996) (exercising pendent appellate jurisdiction over
state law claims against officials when reviewing denial of motions to dismiss asserting
qualified immunity).
The appellants cite three additional cases from this court where an appellant obtained
review of non-appealable interlocutory motion for summary judgment in the context of an
appeal from a motion for injunction. As the appellants recognize, however, these cases predate
Swint and provide little guidance. Justin Indus., Inc. v. Choctaw Secs., L.P., 920 F.2d 262 (5th
Cir. 1990); Gould v. Control Laser Corp, 650 F.2d 617 (5th Cir. 1981); Madry v. Sorel, 440 F.2d
1329 (5th Cir. 1971).
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No. 08-50231
pendent appellate jurisdiction over the summary judgment motion because “the
district court denied Lamar’s request for a preliminary injunction for the very
same reasons it denied Lamar’s motion for summary judgment . . . .” Id. at 372
(emphasis added). Lamar is distinguishable from this case for the reason
articulated by the State: the appellate court was required to invoke pendent
appellate jurisdiction to correct the error of law—denial of plaintiff’s
standing—that had become the basis for the denial of preliminary injunction.
In this case, we have reviewed the injunctive order without reaching a
dispositive ruling on the First Amendment claim.
The same reasoning disposes of the other cases cited by appellants. See
Law v. NCAA, 134 F.3d 1010, 1015-16 (10th Cir. 1998) (the court reviewed the
summary judgment order that served as the legal basis for granting the
permanent injunction.); Dare v. California, 191 F.3d 1167, 1170 (9th Cir. 1999),
(appellate jurisdiction existed because partial “summary judgment order
provides legal authority for the injunction . . . .” ). Moreover, in both cases, the
summary judgment was subsumed in a permanent injunction ruling.
More pointedly, appellants rely on two cases that employ what might be
called a “readily apparent” pendent appellate jurisdiction standard. In both
Amandola v. Town of Babylon, 251 F.3d 339 (2d Cir. 2001), and Hurwitz v.
Directors Guild of America, Inc., 364 F.2d 67 (2d Cir. 1966), the court reviewed
district court rulings denying a motion for preliminary injunction and also
denying a motion for summary judgment. In Hurwitz, the court held that the
membership oath denying Communist Party membership and support required
by the Director’s Guild of America was “per se an unreasonable and unlawful
requirement for union membership.” 364 F.2d at 69. The court then explained
it was exercising jurisdiction for “the obvious interest of economy of litigation.”
Id. Amandola, citing Hurwitz, employs similar reasoning. There, a religious
group was denied access to what the group claimed was a limited public forum.
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No. 08-50231
Amandola, 251 F.3d at 342-43. The district court denied the group’s motion for
preliminary injunction finding no irreparable harm. The Second Circuit
reversed, but rather than “address any tension” in its cases regarding
irreparable harm and the First Amendment, the court decided the case on the
merits. Id. at 343. Citing Hurwitz, it ruled that jurisdiction was appropriate
because the First Amendment issue had been fully briefed and argued, and the
invalidity of the provision was “readily apparent.” Id.
The appellants advance a similar argument here. While we are
sympathetic that on remand, the State’s attempt to justify this speech
infringement may readily fail, Central Hudson offers the possibility that the
State can bolster its case with additional evidence. But see Pagan v. Village of
Glendale, 559 F.3d 477, 479 (6th Cir. 2009) (holding a local commercial speech
ordinance unconstitutional because the state did not produce any additional
evidence on remand). Although the State moved for summary judgment in the
trial court, it never waived its right to a trial. Our approval of a preliminary
injunction signals the difficulty of the State’s legal position, but it does not
entirely foreclose the State from possible eventual success.
IV. Conclusion
For the foregoing reasons the judgment of the district court denying the
request for a preliminary injunction is VACATED. We REMAND to the district
court to preliminarily enjoin the enforcement of above-cited Texas laws
prohibiting unlicensed interior designers from using the terms “interior design”
and “interior designer” to represent themselves and their businesses and for
further proceedings consistent with this opinion.
VACATED and REMANDED.
14