The National Association of Optometrists & Opticians represents eyewear manufacturers and distributors in California, where state officials have been myopic with respect to business regulation.

Under California’s Business and Professions Code, state-licensed optometrists and ophthalmologists are allowed to conduct eye exams and sell glasses at their place of business, while commercial retailers—such as the national eyewear chains represented by the NAOO—are barred from furnishing onsite optometry services. Since consumers have a strong preference for “one stop shopping”—buying their glasses at the same place where they have their eye exams—California’s law gives instate retailers a crucial competitive advantage. Businesses that cannot co-locate their services have quickly vanished from the market.

The NAOO thus sued California officials for discriminating against out-of-state retailers in violation of the “dormant” Commerce Clause, which prohibits states from imposing unjustifiable burdens on interstate commerce. The district court ruled in the group’s favor, concluding that the relevant statutes have a widespread and unjustified discriminatory effect that can’t be reconciled with Supreme Court precedent. The U.S. Court of Appeals for the Ninth Circuit reversed, however, holding that state-licensed optometrists and out-of-state retailers aren’t similarly situated competitors—even though they compete for the same customers in the same market.

On the case’s second round in the Ninth Circuit, the court scrutinized the California law under a more lenient balancing test and again upheld the ban on co-location by out-of-staters. Cato now joins the Opticians Association of America and five individual optometrists on an amicus brief urging the Supreme Court to take the case (supporting a petition for review filed by former solicitor general Paul Clement).

We argue that California’s laws are unconstitutional because their true purpose—as revealed through legislative history and the scheme’s hollow public health rationale—was merely to protect in-state business interests. California’s protectionist regime also has an adverse impact on poor and minority consumers, who confront increased costs and diminished access to eye care while also being disproportionately afflicted with visual impairments.

Not only does the Ninth Circuit’s ruling stifle competition, restrict consumer choice, and increase prices, it also encourages state and local governments to evade scrutiny of discriminatory regulations by relying on superficial distinctions between in- and out-of-state businesses that warp the meaning of “similarly situated competitors.”  The Supreme Court should intervene to prevent any further erosion of its dormant Commerce Clause jurisprudence and uphold the anti-protectionism principles envisioned by the Founders when they abandoned the Articles of Confederation in favor of the Constitution.

The Court will decide whether to take up National Association of Optometrists & Opticians v. Harris later this year or in early 2013.

While they were turning out to the polls to help reelect President Obama on Tuesday, residents of Los Angeles County also approved a ballot initiative known as “Measure B,” requiring the producers of “adult films”—meaning porn, not Criterion Collection fare—to acquire a public health permit and adhere to a number of regulations, most controversially a mandate that performers wear condoms on the set. Prominent industry figures such as James Deen have opposed the measure on the grounds that it is unnecessary in light of the existing rigorous testing regime, counterproductive in the context of shoots that require performers to have intercourse for “nonstandard amounts of time,” and will ultimately be ineffective as filming will simply move outside Los Angeles County.

These are all compelling points, but the measure also raises some interesting theoretical questions in an industry where, as in journalism before it, new technology has blurred the once-sharp lines between amateur and professional content production.

While I will refrain from linking to any examples on this family-friendly blog, “traditional” professionally produced adult video now competes with an array of sites specializing in amateur or quasi-amateur sexual content. Some entrepreneurial couples and individuals launch their own personal sites, making home videos and live webcam streams available to subscribers. Other sites act as middlemen, purchasing home videos shot by amateur couples for online distribution. Still others serve as platforms on which individuals and couples can stream live sexual content from their home web cameras, earning revenue based on the number of viewers. While it seems clear that Measure B is not intended to target these amateur producers, they do seem to fall within the scope of the law’s definitions, strictly construed.

Here’s a thought experiment: Imagine a couple who sometimes tape their sexual activity for—at least initially—their own private enjoyment. In the past, when money was tight, they periodically sold these videos to a subscription-based website that specializes in homemade fare, and they expect that they may do so again in the future as the need arises. At what point are they required to  register with the state and pay a permit fee if they wish to continue taping in their own bedrooms? If they fail to do so, are they later liable should they attempt to sell or self-distribute those recordings, either for a subscription fee or on an ad-supported website?

Now, realistically, I find it almost inconceivable that Los Angeles would seek to enforce the law against the imaginary couple I’ve described. I find it slightly more plausible that an L.A.–based couple who maintain their own site could be affected, and one can also imagine an aggregation and distribution site or platform being targeted—perhaps at the urging of traditional studios looking to eliminate the competition—though it is hard to see how such sites could feasibly comply with some of the law’s requirements. If a similar law were adopted nationally, or by many states—making it harder for professional studios to resume business by moving elsewhere—some of these scenarios become a good deal less far-fetched.

Again, given that the intent of the law is fairly clearly to regulate traditional professional porn studios, I expect that in practice they are likely to be the exclusive targets of enforcement for the foreseeable future, and those who wish to continue shooting scenes sans-latex will find plenty of nearby jurisdictions happy to welcome their business. Still, I think it’s an interesting class of hypotheticals to contemplate, because it problematizes the widespread view that there’s some sharp and clear distinction between the realm of private intimacy shielded from state interference and the realm of commerce subject to broad regulation. Here, it becomes especially clear that the commercial regulation inevitably implicates rights of personal sexual choice and bodily autonomy. But commerce has never really been some hermetically sealed domain, where rules that conflict with the values or preferences of workers and entrepreneurs somehow don’t count as impinging on personal autonomy, in contrast with the sacrosanct domain of the home where such intervention would be anathema. In a digital economy that makes “home” and “workplace” the same place for a growing number of people—where the boundary between personal projects and production for profit becomes increasingly blurred—that distinction seems likely to become increasingly untenable in more and more areas.