There’s a buzz over an unusual constitutional standoff in Nebraska

Because of his intimidating style, the legendary 1950s baseball pitcher Sal Maglie was known as “The Barber.” His brush-back pitches came sooooo close batters felt as if they were getting a shave.

Considering his nickname, it’s probably best that “The Barber” is no longer with us, lest he find himself in hot water if he made a cameo appearance at the College World Series in Omaha.

In a seemingly unrelated note, the Orpheum Theater in Omaha might want to rethink any plan to reprise last October’s performances of the opera, “The Barber of Seville,” especially if it intends again to picture Figaro on stage with a barber pole. 

Similarly, my friend Kurt should remain in Iowa, because if he ever moved to Wahoo or Ogallala, the barber chair in his family room could raise eyebrows of Nebraska officials.

While these musings may seem random, their common themes of barbers and Nebraska are relevant today because state regulators in our neighbors to the west do not take kindly to people or places using the word “barber” or displaying barber symbols without first having secured a Nebraska barber’s license. 

Using either, the state claims, breaks the law — even if you never cut hair or trim a moustache.

We know this because the Nebraska Board of Barber Examiners threatens to prosecute three DiGiacomo siblings from Omaha for running a barbershop-themed bar that honors their late father, who ran DeComo’s Hair Fashions for 30 years in the same building.

Mike, Dominic and Jaclyn operate Blackstone Social, a traditional tavern in Omaha’s Blackstone neighborhood. Downstairs is what has Nebraska regulators buzzing. There, the siblings have a nighttime speakeasy called The Barber Shop Blackstone that you can only access through an unmarked alley door that leads to the basement.

A small barber pole hangs outside the alley door, and a vintage 1950s barber chair awaits inside. The DiGiacomos were not aware Nebraska law forbids an unlicensed business from using the words “barber” or “barber shop” or displaying the familiar red, white and blue twisted-stripe barber pole.

But after an Omaha barber complained to the state licensing board that the speakeasy’s theme was “disrespectful,” the dispute escalated into a constitutional showdown over free speech and government regulation.

The state warned the siblings they faced “civil and criminal consequences” for linking their establishment with barbering.

This is no two-bit dispute over semantics. It even has drawn the attention of the New York Times.

The central issue in the family’s federal court lawsuit is whether Nebraska officials are violating the First Amendment by restricting commercial speech that the DiGiacomos’ lawyers assert neither genuinely misleads nor harms consumers.

After all, it’s not as if people were wandering in off Farnam Street looking for late-night razor cuts and pompadour trims. There is no barber shop sign on the front of the building, and the only buzz patrons might get came from cocktails, not clippers. 

The Institute for Justice, a national nonprofit law firm that challenges government regulatory overreach, represents the siblings. The institute’s Justin Wilson said entrepreneurs like the DiGiacomos have a right to name and decorate their businesses without unreasonable government restrictions.

He said that while government may regulate business advertising to protect consumers from fraud or confusion, it cannot “take words out of the dictionary and put them under the control of a board of bureaucrats.”

Nick DeBenedetto, another institute official, said: “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.”

A judge recently rejected the siblings’ request for a preliminary injunction preventing the state from enforcing the Nebraska law while the court untangles the claims and defenses. Until there is a final decision, the DiGiacomos have renamed their speakeasy “The Censored Shop.”

Robert McNamara, the Institute for Justice’s deputy litigation director, told reporters, “Your free speech rights shouldn’t hinge on whether government officials get your jokes. The state’s power to control how you advertise is really the state’s power to stop you from ripping off consumers. And if you’re not doing that, that’s the end of the state’s business.”

Mike DiGiacomo said, “I still cannot believe the government can look at a bar, know it is a bar, admit no one is confused, and still threaten us with jail time because of the name and the decorations.”

Some observers believe the larger concern for Nebraska regulators is preventing cosmetologists and beauticians from marketing themselves as barbers or using traditional barber symbols, thereby cutting into the livelihood of the state’s Figaros. 

Whatever the underlying motivation, barbershop quartets may want to keep an eye on this case, because their four-part harmony could mean trouble.