Erica Smith Ewing serves as a senior attorney with the Institute for Justice. She joined the Institute in August 2011 and her work focuses on economic liberty, educational choice, free speech, and property rights.
Erica’s economic liberty work includes fighting for “food freedom,” which is the right of people to buy and sell the food of their choice. Erica has special expertise in cottage food laws, which allow people to sell food made in their home kitchen instead of paying tens of thousands of dollars to rent commercial kitchen space and apply for burdensome commercial food licenses.Erica successfully sued Wisconsin, New Jersey, North Dakota, and Minnesota to protect the rights of cottage food producers. Erica also advises legislatures nationwide on cottage food reform and has helped several states improve their laws, including Kentucky, Maryland, Nebraska, New Mexico, West Virginia, and Wyoming. Erica also successfully sued in Washington to lift local restrictions on using “little free pantries” to feed the homeless. Erica’s food freedom work has been featured on CBS Sunday Morning, CBS This Morning, NPR’s Morning Edition and in the New York Times and Bon Appétit.
Erica’s economic liberty work also fights unfair employment barriers for those with a criminal record. For instance, Erica recently challenged Pennsylvania’s requirement that would-be cosmetologists prove that they have “good moral character” before they can get a license to work. The court struck the law down as a violation of equal protection.
Erica protects the right of families to choose the education that best meets their children’s needs. Most recently, Erica and her colleague Dick Komer were lead counsel in the U.S. Supreme Court case, Espinoza v. Montana Department of Revenue, where the Court held that the government violates the Free Exercise Clause when it excludes religious schools and the families who want to attend them from a school choice program. Erica was also lead counsel in Asociación de Maestros v. Departamento de Educación, where she successfully defended the constitutionality of Puerto Rico’s school voucher program at the territory’s supreme court. Likewise, Erica helped protect Georgia and New Hampshire’s tax-credit scholarship programs before each state’s supreme court.
Erica’s free speech work focuses on protecting commercial signs, political protest signs, and murals. She has successfully defended a family’s right to use signs to advertise its gym, a cowboy bar’s right to advertise using a mural,a video game store’s right to advertise using a 9-foot inflatable Mario, and a veteran-owned business’ right to protest the illegal taking of its land.
More recently, Erica has been focused on protecting property rights and fighting local zoning laws that interfere with those rights. Local zoning laws are the biggest reason for the housing crisis, and Erica fights laws that prevent people from using creative, private solutions to create affordable housing. She is currently litigating lawsuits in Idaho and Georgia about the right to live in tiny homes, and she successfully defended the right of a Utah motel owner to offer long-term leases to low-income residents. She also fights zoning laws that unfairly prevent home businesses, and recently won a lawsuit protecting a single mother’s right to have a home day care in Texas.
Before joining IJ in 2011, Erica served as a law clerk for the Honorable Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina. Erica received her law degree cum laude from the University of Pennsylvania Law School in 2010.
Erica's Cases
Private Property | Private Solutions to Public Problems | Zoning Justice Project
North Carolina Animal Sanctuary Fights Back Against Crushing Zoning Restrictions
Kimberly Dunckel founded Fairytale Farm Animal Sanctuary to rescue and care for animals on her 3.33-acre property, but Winston-Salem officials ordered her to close her sanctuary to the public.
First Amendment | First Amendment Retaliation | Housing Abundance and Affordability | Private Property | Right to Shelter | Zoning Justice Project
Meridian Woman Fights City’s Ban on Living in Tiny Homes on Wheels, Which Has Left Her Homeless
Chasidy Decker is a native to the Boise area who wants to live in the tiny home that suits her.
Economic Liberty | Private Property | Small and Home-Based Business | Zoning Justice Project
Home day care provider sues city after officials shut her down over complaints from golfers
Bianca King is a single mother with two young children. Until recently, she was able to raise her 2-and 4-year-old kids while making a living running a small day care out of her home. But on Feb. 9, city officials—citing concerns of a group of nearby golfers (including former Mayor Joe Bain) that they could hear and see children playing in her backyard—shut her down. Today, she joined forces with the Institute for Justice (IJ) to file a lawsuit in state court challenging Lakeway’s near total ban on running a home business.
Housing Abundance and Affordability | Private Property | Private Solutions to Public Problems | Right to Shelter | Zoning Justice Project
Georgia Nonprofit Fights City’s Ban on Small Homes
Tiny House Hand Up is a nonprofit that builds affordable tiny homes for people in Calhoun, Georgia. But the city of Calhoun’s unconstitutional ban on building tiny homes has prevented THHU from helping people in Calhoun achieve their dream of homeownership. But the organization is fighting back with IJ’s help
Educational Choice
Vermont Parents Sue State Over Unconstitutional School Choice Policy
Vermont has one of the most robust school choice programs in the country, but there is one massive exception. The state does not provide the tuition benefit for parents who want to send their children to religious schools. Three Vermont families have partnered with IJ to challenge this unconstitutional provision.
Educational Choice | Publicly Funded Scholarships
Grandparents Sue Granite State Over Unconstitutional Restriction on School Choice Program
The town of Croydon, New Hampshire does not operate a middle school and instead pays students’ tuition at nearby public or private schools. But a New Hampshire law prevented Croydon families from spending the money to choose a religious school. After a family challenged the law in court, the Legislature eliminated the unconstitutional restriction.
Economic Liberty | Food Freedom | Private Solutions to Public Problems
Neighbors Challenge County’s Burdensome Regulations on Little Free Pantries
Thanks to a lawsuit she filed with IJ, Kathy Hay can now share food with her neighbors in Asotin County, Washington, using a “little free pantry” in her backyard. Before the lawsuit, Kathy wasn’t allowed to use the little blue cupboard in her backyard to help feed members of her impoverished community without obtaining government approval and following a list of unnecessary demands from the county health department.
Economic Liberty | Food Freedom
North Dakota Food Freedom
Five North Dakotans teamed up with IJ to sue the Department of Health for illegally passing regulations on selling homemade baked goods. Now, North Dakota is again one of the best states in the country for food freedom.
Commercial Speech | First Amendment | Sign Codes
Mandan's "mural police" goes after art the city does not like
In 2019, the city of Mandan told Augie and Brian they’d have to remove their mural because it promoted a business. Augie and Brian successfully teamed up with IJ to stop the town’s law which clearly violated the free speech rights of individuals and businesses.
Cosmetology | Economic Liberty | Fresh Start | Occupational Licensing
Law Denies Women Right to Work Because of Irrelevant Criminal Convictions
A Pennsylvania law prevented Amanda and Courtney from earning an honest living because of unrelated criminal records. After IJ stepped in to defend their rights, the Pennsylvania Commonwealth Court ruled this law was unconstitutional.
Educational Choice | Publicly Funded Scholarships
Puerto Rico School Choice
In March 2018, the Puerto Rican legislature enacted the Free School Selection Program, which gives needy families scholarships so that they can send their children to the school of their choice. A teachers’ union immediately challenged the program, and IJ stepped in to defend the program, ultimately saving the program.
Commercial Speech | First Amendment | Sign Codes
Mario, the Classic Video Game Character, Fights City Hall
The town of Orange Park, Florida banned Scott Fisher from putting an inflatable blow-up of the video game character Mario in front of his video game store. IJ and Scott challenged the town’s law that discriminated against commercial speech, and in January 2018, the town amended the sign code, allowing Mario to stay.
Economic Liberty | Food Freedom
Wisconsin Farmers Challenge State Ban on Selling Home-Baked Goods
Educational Choice | Tax Credit Scholarships
Montana Moms Seek to Restore School Choice Program that was Struck Down for Including Religious Options
On June 30, 2020, the U.S. Supreme Court decided one of the most important education reform cases in the past half-century. This landmark case held that the U.S. Constitution does not allow states to discriminate against religious parents or schools if policymakers choose to enact a private educational choice program.
Economic Liberty | Hair Braiding | Occupational Licensing
Untangling Entrepreneurs from Arkansas' African Braiding Laws
Hair braiding is a simple and safe practice that the government has no business regulating. But in Arkansas, braiders may not sell their services unless they complete 1,500 hours of government-mandated cosmetology training, not one hour of which actually teaches how to braid hair.
Educational Choice | Tax Credit Scholarships
Georgia School Choice
Georgia’s school choice program gives thousands of parents an opportunity to find a school that best fits their children’s needs without using a single cent of state funds.
Economic Liberty | Food Freedom
Baked Fresh, Baked Free: Challenging Minnesota’s Restrictions on Selling Home-Baked Goods
Minnesota has slammed the oven door on bakers trying to make a home-based business out of satisfying Minnesotans’ sweet tooth.
Commercial Speech | First Amendment | Sign Codes
Sacramento Sign Police Target Small Business: Gym Tells City It Needs To Get With The Program
Educational Choice | Tax Credit Scholarships
IJ Defends School Choice in New Hampshire
First Amendment | Sign Codes
Federal Appellate Court OKs City’s Crackdown on Protest Sign: 4th Circuit fails to protect Norfolk business’ eminent domain protest banner; lawyers, business owners vow appeal to U.S. Supreme Court
In a double blow to free speech and property rights, Norfolk, Va., tried not only to take a thriving business through its power of eminent domain but also censor a highly visible sign that protested the unlawful condemnation.
Erica's Research & Reports
Food Freedom
New Data Show Homemade Food for Sale is Incredibly Safe
Is buying homemade food safe? New data from the Institute for Justice (IJ) show the answer to that question is a resounding “yes.” IJ contacted the seven states with the broadest homemade food laws…
Erica's Amicus Briefs
Reed v. Town of Gilbert
US Supreme Court
Erica's Legislation
Economic Liberty | Private Property | Zoning Justice Project
Home-Based Business and Occupation Act
The pre-COVID custom of Americans living in one place and working in another is historically unusual. As one scholar noted, “The phenomenon of leaving home to go to work did not become the norm until the…
Economic Liberty | Food Freedom
Food Freedom Act
Selling homemade food is a great way for entrepreneurs with big dreams but little capital to start a business. Working from their homes, they can avoid spending tens of thousands of dollars on commercial kitchen…
Occupational Licensing
Animal Husbandry Workers Freedom & Opportunity Act
Animal husbandry is a specialty in agriculture and animal science. It focuses on breeding and care of farm animals, including cows, pigs, chickens, sheep and horses. Workers play a crucial role in maintaining the…
Erica's News, Articles & Publications
Erica's Letters & Statements
Philadelphia Food Truck Retaliation
Philadelphia, Pennsylvania
Massachusetts Lobster Ban Letter
Yarmouth, Massachusetts
South Fulton Zoning Letter
South Fulton, Georgia
Mississippi Special Needs Center Letter
Ellisville, Mississippi
Haines City Food Truck Ban Letter
Haines City, Florida
Nampa Food Truck Letter
Nampa, Idaho
North Carolina Fresh Start Letter
North Carolina
Erica's Podcasts
September 17, 2019
Previewing IJ's Next Case at the United States Supreme Court
What Blaine Amendments Have To Do with Educational Choice
Never heard the term “Blaine Amendments” before? The U.S. Supreme Court’s decision to hear IJ’s educational choice case Ezpinoza v. Montana Department of Revenue is […]
Listen Now