Byrum v. Landreth

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:

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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

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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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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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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