Institute for Justice joins lawsuit defending family bar threatened with fines and even jail time for using “barbershop” theme to honor owners’ late father
When Mike DiGiacomo and his siblings wanted to remodel the speakeasy bar they run in downtown Omaha, he wanted a theme that would honor their dad, Don “Don the Barber” DiGiacomo, who had cut hair in that very same building for decades. So the “Barber Shop Blackstone” was born: A small speakeasy accessible only through an unmarked door in a back alley, with a tiny barber pole mounted nearby as a clue for eagle-eyed patrons.
The bar was initially a success. Patrons enjoyed the themed drinks (as well as the documentary on the history of barbering that played on a loop in the front room). Locals started sending in pictures of their own barber fathers to be added to the bar’s décor. And the DiGiacomo siblings were glad they could pay tribute to their memories of their dad and his small business.
The bar was also, it turns out, a crime. Mike received an angry letter from the state’s barbering board telling him Nebraska law makes it illegal for anyone who isn’t a licensed barber to use the name “barber shop” or display a barber pole.
At first, Mike thought it was a misunderstanding. He wrote back, explaining that his bar is, well, a bar. It is only open at night. It serves alcohol. No one could conceivably confuse it with a place they could actually get a shave and a haircut.
The board’s lawyer didn’t back down. It didn’t matter if consumers were confused. The board owned the words “barber shop.” It owned the idea of the barber pole. And Mike, they said, could go to jail for using them, even if everybody knew exactly what his business was.
But the government can’t take ordinary words out of the dictionary and put them under the control of state bureaucrats. That is why Mike and his siblings have teamed up with the Institute for Justice to sue the state board and stand up for the basic principle that states can’t use licensing laws to censor speech.
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Introduction
When Mike DiGiacomo and his siblings bought their father’s old hair salon in downtown Omaha (their dad, “Don the Barber,” had retired some years earlier), they knew they wanted to run their own business in the space where their dad had run his, but they didn’t want to cut hair. Instead, they turned it into a bar—a traditional bar upstairs and a hidden-away Italian-themed speakeasy in the basement.
The DiGiacomo siblings grew up in their father’s barber shop—assisting with maintenance and upkeep, getting to know the regulars, listening to the stories of the other barbers and their customers, and generally centering their lives around the shop the way kids often do with a small family business. Mike swept the floors after school. His sister Jaclyn took curlers out of ladies’ hair.
A few years after opening the bar, the siblings wanted to rebrand their speakeasy to more closely match their connection to the space and to honor the memory of their dad, who had recently passed. And so the Barber Shop Blackstone was born.
A barber-themed speakeasy, the Barber Shop Blackstone is accessible only through an unmarked door in a back alley, with a nearby small red, white, and blue barber pole tucked behind an ice machine serving as a clue for the eagle-eyed. Once inside, patrons are treated to a video detailing the history of barbering and handmade craft cocktails (many barber-themed).
But it wasn’t long before the DiGiacomo siblings learned that their tribute to their father had put them on the wrong side of Nebraska law.
Nebraska Outlaws the Use of Common Words and Imagery for Business Promotion
Unbeknownst to the DiGiacomo siblings, Nebraska law forbids them from using the words “barber” or “barber shop,” or to employ the ubiquitous image of the red, white, and blue barber pole in association with their business. And shortly after the Barber Shop Blackstone’s grand opening, the business received a letter from the State threatening civil and criminal penalties unless the name was changed.
State law restricts the use of these terms regardless of whether consumers are actually confused, and that’s exactly how the board enforces it. Look no further than its enforcement actions against the Barber Shop Blackstone. No one told the board they were confused by the name; no hapless consumer claimed that he’d somehow stumbled into the bar at 11 p.m. expecting to get a shave and a haircut. Instead, the board’s enforcement was prompted by a complaint from a local licensed barber who knew exactly what the Barber Shop Blackstone was—a bar—and found “the whole theme of the place so disrespectful to the trade.” In other words, Nebraska regulators are threatening Mike and his siblings with criminal punishment because their bar’s name hurt a barber’s feelings.
But feelings were enough. The board sent Mike a letter, insisting that the bar’s name was illegal, as was its miniature barber pole. Mike tried to respond reasonably—the bar was, after all, a bar, and nobody ever had or conceivably ever would wander in looking for a haircut—but the board renewed its threats, warning Mike that continuing to use the name carried criminal and civil penalties, and that trying to litigate about his rights would be “expensive.”
At first, the threatening letter worked. Mike was scared, and so he tried to talk to the board to see if he could somehow smooth things over. Eventually, those efforts resulted in a meeting with board personnel and a representative from the state’s attorney general’s office, where Mike learned that the board not only wanted him to change the bar’s name, but also insisted that it had the right to approve whatever the new name was. (One member of the barber board suggested, apparently seriously, that Mike change the name to the “Bar Bar.”) But Mike figured that couldn’t be right: Surely, he thought, the government can’t just outlaw using a common word like “barber.”
Who Owns the Word “Barber”?
To understand how the government came to claim such sweeping power over common words, it helps to look at the history of Nebraska’s regulation of barbers.
The State of Nebraska has licensed barbers since 1927. And in 1963, the State established the Nebraska Board of Barber Examiners—a regulatory board that is independently authorized to regulate the profession and enforce Nebraska’s law governing barbering.
Fifty-four years later, the Barber Board applied for a trademark under Nebraska law for the red, white, and blue barber pole—an icon associated with the barbering profession since the fifth century. Despite a warning from the Nebraska Attorney General that the trademark might not be enforceable, the Board nevertheless spent the ensuing decades sending demand letters to any businesses which employed barber pole imagery without possessing a Nebraska barber license.
The Barber Board’s tactics were eventually met with some resistance. But then, in 2009, the Nebraska Legislature amended its law regulating barbers to make it illegal for a business to use or display the barber pole in advertising or to use the term “barber” or “barber shop” without being a licensed Nebraska barber.
The First Amendment Protects the Right to Use Common Words and Images to Name, Style, and Promote a Business
Nebraska cannot exclude common words and images from use for business purposes and reserve them for itself. That’s because the First Amendment “protects commercial speech from unwarranted governmental regulation.” 1 And in order to restrict commercial speech, the government must prove with evidence that such speech causes actual, real-world harm and that the restriction is a tailored response to the harm.
The Barber Shop Blackstone does not claim to be a barber shop, and nobody has mistaken it for one. Its website and social media pages clearly identify it as a bar. It is only open at night. And the business lacks any exterior signage which would suggest that a passerby could walk in and get a haircut. In short, there is no evidence of actual harm to consumers that can justify Nebraska’s restrictions on bar’s commercial speech.
In fact, the real purpose of Nebraska’s restrictions has nothing to do with preventing harm to consumers. Instead, the restrictions are designed to provide an anti-competitive advantage to state licensed barbers by preventing beauticians, cosmetologists, and others offering traditional barbering services from using common words and imagery in association with their businesses and thereby attract customers away from the barbers. And even though speakeasies were not the intended targets of the law, the Barber Board has every incentive to push its authority as far as possible to ensure the barbers’ continued advantage over their competition.
The government’s claimed power here is so broad as to be breathtaking. The board’s theory is that it owns the words “barber” and “barber shop,” as well as owning the idea of a red, white, and blue pole (or a pole with any combination of those colors). It doesn’t matter whether anyone is harmed or even momentarily confused by a business’s advertising: Those words belong to the government and may only be used with the government’s permission. Barbershop quartets should beware. Santa’s elves ought to take down those candy canes. No talking without the government’s say-so.
But of course not. The government’s power to restrict how businesses advertise themselves is the power to protect consumers from fraud or confusion, not a freewheeling power to take words out of the dictionary and put them under the control of a board of bureaucrats. People don’t think they can get a haircut at Santa’s Village just because there are red-and-white striped poles, and they don’t assume a pirate-themed bar will be helmed by a licensed sea captain. That’s because people have common sense. State bureaucrats should, too.
This case is about the right of entrepreneurs to name, style, and promote their businesses in a way that will support their success without unreasonable limitations imposed by the government. For the DiGiacomo siblings, that means having the freedom to pay clever homage to their late father, “Don the Barber,” with the theme and design of their Omaha speakeasy.
The Plaintiffs
The plaintiff is Osteria Segretto, LLC, the small business that goes by “the Barber Shop Blackstone” and that is co-owned by Mike DiGiacomo, Dominic DiGiacomo, and their sister Jaclyn Oltmans.
The Defendants
The defendants in this case are Nebraska Attorney General Michael Hilgers and members of the Nebraska Board of Barber Examiners, Tara J. Sterns, Joseph A. Scoville, and Courtney A. Daubendiek, each of whom are sued in their official capacities.
The Lawsuit
This case raises a claim under the First Amendment, seeking to affirm that the government may only regulate commercial speech that is genuinely misleading or harmful, and to establish that anticompetitive motivations are not a proper justification for regulating commercial speech.
The Litigation Team
Mike, Dominic, and Jaclyn are represented by Institute for Justice Deputy Director of Litigation Bob McNamara and Litigation Fellow Nick DeBenedetto. They are litigating this case in partnership with the University of Nebraska College of Law’s First Amendment Clinic.
About the Institute for Justice
The Institute for Justice (IJ) is a national, nonprofit law firm helping everyday Americans fight against government abuse. IJ has been the preeminent defender of First Amendment rights for individuals and entrepreneurs, successfully challenging unconstitutional advertising regulations across the country.
For example, IJ defeated the FDA’s and Florida’s bans on using the words “skim milk” to describe pure, additive-free skim milk, and Mississippi’s ban on the words “veggie burgers.” IJ has also challenged restrictions on signs, including a gaming store’s inflatable character in Orange Park, Florida; a donut shop’s mural in Conway, New Hampshire; and many others.
