United States v. Vasquez-Algarin: Resuscitating the Fourth Amendment

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review 

The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1] At the time the Fourth Amendment was ratified, the various means by which the government might intrude upon an individual citizen’s life were not extensive. However, as the United States has reached a historically unparalleled degree of complexity, courts have struggled to find the proper balance between public order and personal privacy.

Indeed, Fourth Amendment jurisprudence has morphed from a state of affording broad civil protections to the current, more restricted state. Except for the sanctity of the home, the ability of law enforcement officers to intrude upon an individual’s privacy and property currently appears boundless. Yet, a disagreement over the standing of proof required to search a home sans warrant in order to execute an arrest warrant is brewing in the circuit courts. At issue is the level of suspicion an officer needs before entering a residence to effect an arrest warrant, when the arrest warrant names an individual other than the owner of the residence. Continue reading

Ballot Access: Constitutionality of Residency Requirements for Ballot Initiative-Petition Circulators

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

The Sixth Circuit recently reviewed a case regarding an Ohio statute that required initiative-petition circulators to reside in the state of Ohio.[1] The district court declared the law unconstitutional, and the issue of a residency requirement for circulators was not challenged on appeal.[2] Although not challenged by Ohio’s Secretary of State in Citizens in Charge, Inc. v. Husted, the court does analyze the issue of residency requirements and acknowledges that a circuit split still exists regarding whether they are constitutional.[3] Currently, the Second, Eighth, and Tenth Circuits all have different standards to adjudicate the constitutionality of these residency requirements.[4] The inconsistent adjudications over residency requirements for initiative-petition circulators should be cured by a clear and uniform judicial standard to resolve this open constitutional question. The Tenth Circuit’s determination that residency requirements were unconstitutional should be adopted, as it does not infringe upon an individual’s right to political association.[5] Continue reading

Warrantless “Across the Threshold” Arrest: Arrest of Defendant in Defendant’s Doorway

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Early Fourth Amendment jurisprudence originally focused on whether a common-law trespass had occurred.[1] Now, the Supreme Court no longer requires an individual to prove that a property trespass occurred before asserting that their Fourth Amendment rights were violated.[2] However, the ancient connection between a person and their home still warrants significant Fourth Amendment protection. The Fourth Amendment respects that connection and affords protection to houses, persons, papers, and effects, with the home being first amongst equals.[3]

In New York v. Payton, the Court held that, absent a warrant or exigent circumstances, the Fourth Amendment prohibits law enforcement from nonconsensual entry into a suspect’s home in order to make an arrest.[4] Currently, a disagreement between circuits exists on whether Payton should extend to instances where the officer makes an arrest without physical intrusion into the home. The Second Circuit recently extended Payton’s protections to include instances where an officer, without physical entry into the home, arrests a home-dweller.[5] Other circuits reviewing this issue have two schools of thought. The Eleventh, Seventh, and Fifth Circuits have held that there is no Payton violation without physical intrusion into the home by law enforcement.[6] Alternatively, the Ninth, Sixth, and Tenth Circuits have held that a Payton violation may occur if law enforcement engages in coercive behavior, while still not physically entering the house, to arrest the home-dweller.[7] Ultimately, courts should follow the Second Circuit’s rule and base Payton analysis on the location of the defendant rather than law enforcement, as it better protects the individual right to privacy within the home. Continue reading

Apple Inc. and the FBI: Balancing Fourth Amendment Privacy Concerns against Societal Safety Concerns in the Digital Age

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

On December 2, 2015, two shooters opened fire and killed fourteen members of the San Bernardino, California community.[1] Within hours, the police had shot and killed the couple who carried out the horrendous mass shooting.[2] Once the threat had been eliminated, law enforcement and the general public needed information explaining how and why this tragedy occurred. According to the Federal Bureau of Investigation (FBI), current evidence suggests that the shooters had a potential link to Islamic extremism.[3] While the FBI has uncovered troves of information about the San Bernardino attack, the FBI claimed that it needed more information.[4]

The FBI wanted to compel Apple to create software that will break-in to the iPhone and circumvent security features.[5] To do this, the FBI wanted the judicial system to issue a writ that requires Apple to create this software.[6] Judicial authority should not be used in this matter, if the government wants technology companies to provide technological assistance to the government, Congress should pass a law.  No court should issue an order that requires a company to circumvent its own security features as the customer’s right to privacy should outweigh the perceived increase to safety. Continue reading

Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, Continue reading

Ohio’s Limits on Health Services in the Electronic Age

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

Telemedicine is a key innovation in the health care industry. Sharing patient information and physician services across long distances bridges a gap for patients across the world. Telemedicine’s benefits include access to services that would otherwise be unavailable; streamlined and efficient communication between patients and physicians; and the ever-important reduction of health care costs. The recent launch of “mHealth,” Continue reading

The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.

Conclusion

The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at http://www.scotusblog.com/case-files/cases/heffernan-v-paterson/.

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I

Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

Tattoos often portray significant moments in a person’s life, mark rites of passage, show religious devotion, or express feelings towards others. Getting a tattoo allows someone to make “permanent that which is fleeting.”[1] Tattoos, which at one point were seen as a seedy tradition of bikers and rebels, have now firmly become a part of mainstream, modern society.[2] But despite the widespread popularity and acceptance of tattoos in modern society many courts reject the artistic merits of the art of tattooing and deny it protection under the First Amendment.[3] While the Supreme Court interprets the language of the First Amendment to protect artistic expression, lower courts do not include tattooing as a form of artistic expression.[4] Modern day tattoo artists “emphasize creativity and expression” in their work, and as a result, tattooing is now a leading art form.[5] In consideration of this modern understanding of tattooing, some courts have determined that the act of tattooing is protected under the First Amendment.[6] This is a much-needed change in First Amendment jurisprudence; tattooing should be considered artistic expression and protected under the First Amendment.

Zoning to Prohibit Tattoo Parlors

The case of Euclid v. Ambler Realty Co. is the foremost case surrounding zoning in the United States.[7] In Euclid, the United States Supreme Court found that there was a substantial governmental interest in regulating land uses; however, a municipality must show that there is a rational basis behind its zoning laws—i.e., the zoning ordinance must be related to either public health, safety, morals, or general welfare.[8]

In regard to tattoo parlors, courts have traditionally upheld zoning laws either banning or severely restricting tattoo parlors, stating that it is within the government’s purview to protect the “health, safety and general welfare” of its citizens.[9] These courts found that municipalities can regulate tattooing because it involves “puncturing the skin with a needle creating openings in the human skin through which diseases can pass.”[10] Therefore, any regulation around tattooing directly deals with the health and welfare of municipalities’ citizens and meets the Euclid test for reasonable zoning ordinances.[11]

The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.

Tattooing as Artistic Expression

In contrast to the majority, the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held that “the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.

In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]

Moreover, tattooing is now a leading art form in the United States; indeed, many tattoo artists are graduates of college art programs who are known for their custom designs.[21] Some tattoo artists even seek copyrights on their finished pieces.[22] Although tattoos may fall outside the traditional understanding of art due to their unique medium, to hold that the First Amendment protections do not apply to tattoo artists diminishes the value of their artwork and severely obstructs their ability to use artistic expression as a form of speech. While these protections should have always been in effect, courts cannot ignore the art form’s recent growth in acceptance.

Conclusion

Tattooing is now considered an art form (with the tattoo a product of this art form). As such, tattooing is a form of artistic expression that deserves protections under the First Amendment. Therefore, zoning ordinances that prohibit tattoo parlors are unconstitutional and should not be upheld.

[1] Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-American, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000).

[2] See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times (Sept. 15, 1995), http://www.nytimes.com/1995/09/15/arts/art-review-tattoo-moves-from-fringes-to-fashion-but-is-it-art.html?pagewanted=all.

[3] See generally Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).; see generally State v. White, 348 S.C. 532 (S.C. 2002).; see generally Kennedy v. Hughes, 596 F. Supp. 1487 (D. Del. 1984).

[4] Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011).

[5] Id at 1090-91.

[6] Supra note 7.

[7] See generally Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[8] Id at 20.

[9] People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).; see generally Hold Fast Tattoo, 580 F. Supp. 2d 656.; see generally Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388 (Va. Cir. Ct. 2007).

[10] Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175, 179 (2011).

[11] See State ex rel. Crabtree v. Franklin Cnty. Bd. Of Health, 673 N.E.2d 1281 (Ohio 1997) (holding that by prohibiting legal tattooing in a community, it encourages black market or underground tattoo parlors, which pose larger risks than allowing lawfully regulated tattoo parlor).

[12] Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).

[13] Id at 1254.

[14] Hold Fast Tattoo, 580 F. Supp. 2d at 660.

[15] Supra note 5.

[16] Anderson, 621 F.3d 1051, 1055 (9th Cir. 2010).

[17] Buehrle, 2015 U.S. App. LEXIS 22782 at *4 (11th Cir. 2015).

[18] Supra note 17 at 1062.

[19] 502 U.S. 105, 116-118 (1991).

[20] Supra note 15 at 1061.

[21] Supra note 9 at 187.

[22] Id.

License to Tour? Charleston Tour Guides Challenge City’s Licensing Requirement

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

It is not uncommon for laws to require an occupational license in order to work in a respective field. For example, jobs in medicine or law require passing examinations and certifications. Occupational licenses, however, become more controversial when they interfere with what may be a violation of First Amendment rights.  Litigation has arisen in a few historic American cities where the cities have promulgated a license requirement for giving tours. These ordinances generally require the tour guide to pass a series of tests, be drug free, and have no recent felonies. [1]

The most recent of these lawsuits has recently come out of Charleston, South Carolina. The Plaintiffs are citizens wishing to be tour guides, but lack a license and are therefore subject to fines and possibly jail time for giving unlicensed tours. The complaint alleges that the licensing requirements violate the First Amendment because it bars speakers from telling stories and from talking for a living.[2] There is a split among the circuit courts regarding this issue. The Fifth Circuit has ruled that these licensing requirements do not violate the First Amendment because the ordinances are “content neutral” and therefore have no effect on what tour guides say. Conversely, the Circuit Court for the District of Columbia has ruled that the ordinances are a violation of the First Amendment.  The D.C. Circuit Court gives a vastly more persuasive argument. The Fifth Circuit gives a half-hearted, incomplete, and ultimately unpersuasive opinion. As the D.C. Court explains, these ordinances cannot pass intermediate scrutiny, the District Court of South Carolina should rule in line with the D.C. Circuit Court.

The First Amendment and Intermediate Scrutiny

The First Amendment, with a few exceptions, prevents the government from restricting the freedom of speech of American citizens.[3] Laws that restrict speech but are content neutral are reviewed under intermediate scrutiny.[4] As the name implies, intermediate scrutiny is more rigorous than rational basis review, but less rigorous than strict scrutiny.

The Supreme Court applies a five-factor test when the government seeks to restrict content-neutral speech. This test inquires into whether the ordinance: (1) is within the constitutional power of the Government; (2) furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest; and (5) the regulation leaves open ample alternative channels for communication.[5] The failure for the government to satisfy any one of the five factors invalidates the regulation.[6]

Kagan v. City of New Orleans

Kagan v. City of New Orleans was a similar challenge to the New Orleans code that required a license for a person to charge for tours of “the city’s points of interest and/or historic buildings, parks, or sites, for the purpose of explaining, describing or generally relating the facts of importance thereto.”

The Fifth Circuit court found the ordinance to be content neutral because the requirements for a license “[have] no effect whatsoever on the content of what tour guides say,” thus the ordinance had no reference to content.[9] The court then applied an incomplete intermediate scrutiny test, stating that the ordinance satisfied the “requirement of narrow tailoring ‘so long as the … regulation promotes a substantial interest that would be achieved less effectively absent the regulation.’”[10] Therefore, because New Orleans, “effectively promoted the government interests, and without those protections for the city and its visitors, the government interest would be unserved.”[11]

Edwards v. District of Columbia

In Edwards v. District of Columbia, the D.C. Circuit Court of Appeals struck down a very similar statute. Under the D.C. ordinance, in order to guide or escort any person through the city for compensation, a guide must: 1) be at least eighteen years old; 2) be proficient in English; 3) not have committed certain felonies; 4) sign a sworn statement that the application is true; and 5) scored at least 70/100 on an examination. [12] The government’s asserted interest was to prevent unscrupulous business practices and “weed[] out guides too … unserious to be willing to study for a single exam.”[13]

The court stated that even if the regulations are content-neutral, they do not pass intermediate scrutiny.[14] In applying the appropriate five-prong test, the court found that prongs two and four are not satisfied.[15] In regards to the requirement that the regulation furthers an important government interest, the court explained that there must be a “direct causal link between the restriction imposed and the injury to be prevented.”[16] The government offered eleven injuries that the ordinance seeks to prevent,[17] however the court found that the government failed to demonstrate that these injuries were actually a problem for D.C.’s tourism industry.[18]

Further, in regards to prong number four, the court found that the regulation was under-inclusive and overbroad.[19] To meet the fourth prong, the regulation must be no greater than essential to further the government’s interest.[20] The court ruled that the regulation failed to meet this prong because there were already incentives in place for a tour guide to provide a quality tour.[21] Additionally, unlicensed tour guides could find ways around the regulation. For example, an unlicensed tour guide could stand in front of the White House and charge a fee for information, or could walk around with an audio recording.[22]

Charleston’s Licensing Requirements Violate the 1st Amendment

Americans sometimes need to sacrifice certain rights in order to balance legitimate government interests. This give and take approach is exemplified in the First Amendment tests by requiring the government to prove that it is protecting its legitimate interest in a narrowly tailored way. The licensing regulations are an example of government overreach. The regulations are a form of controlling who speaks in the respective city, and the government’s proposed interest does not justify the intrusion on certain citizens’ rights since they lack necessity.

Assuming intermediate scrutiny applies, it is clear that a statute requiring a license to be paid for tours cannot pass constitutional muster.  The Fifth Circuit gave a one-sentence justification for why the ordinance passes intermediate scrutiny. The court only stated that the regulation is no greater than what is essential to further the government’s interest, that the regulation effectively promotes the government interest, and that without the regulation this interest would be unserved. It never addressed any counter arguments or why these arguments fail.

In contrast, the D.C. Circuit correctly argued that these governmental interests can be served without restrictive regulations. Word of mouth and business reviews can protect the government’s asserted interest without violating the First Amendment. For example, if the tour guides were drug addicts and knew nothing about the city, the business would never last because it would receive terrible reviews and go out of business. A restaurant does not need to pass a test showing they know a certain amount about food or drinks before they serve food. If the food and service is unsatisfactory, the restaurant will not last. A tour guide business can be regulated in the same way.  Alternatively, a government can always offer certifications that add legitimacy to a tour guide but do not go so far as to exclude the speech of others. Accordingly, the government does not need to be in the business of suppressing people’s speech.

Conclusion

The district court in Charleston, South Carolina should follow the D.C. Circuit court. The tour guide restrictions violate the First Amendment because they are greater than essential to promote the already questionable governmental interest. These interests can be served without government intervention. The violation is not justified by the purpose of the regulation. Thus, the district court should rule against the licensing requirement, and eventually the Supreme Court should overrule the Fifth Circuit.

[1] E.g., New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551; D.C. Code § 47-2836.

[2] Santos, Suzelle, Jacobs, Harve, “Lawsuit: Charleston Tour Guide Licenses Shouldn’t be Required” http://www.cbs46.com/story/31081039/lawsuit-charleston-tour-guide-licenses-shouldnt-be-required CHECK CITE.

[3] Examples of exceptions include defamation, obscenity, and incitement of imminent lawless action. See Miller v. California, 413 U.S. 15 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969).

[4] Ward v. Rock Against Racism, 491 U.S. 781 (1989).

[5] United States v. O’Brien, 391 U.S. 367, 377 (1968), Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984).

[6] Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).

[7] Kagan, 753 F.3d at 561.

[8] Id.

[9] Id. at 562 citing Ward, 491 U.S. at 799.

[10] Id. citing Ward, 491 U.S. at 799.

[11][11] Id.

[12] D.C. Code §47-2836

[13] Edwards, 755 F.3d at 1001-1002.

[14] Id.

[15] Id. at 1003.

[16] Id. citing Edenfield v. Fane, 507 U.S. 761, 770-771 (1993).

[17] 1) Unscrupulous businesses, (2) tourists whose welfare is jeopardized by tour guides lacking a minimal level of competence and knowledge, id.; (3) tour guides lacking “minimal knowledge about what and where they are guiding or directing people to,” (4) consumers unprotected from unknowledgeable, untrustworthy, unqualified tour guides, (5) tour guides lacking “at least a minimal grasp of the history and geography of Washington, D.C.,”; (6) visitors vulnerable to “unethical, or uninformed guides,” (7) tourists treated unfairly or unsafely, (8) tourists who are “swindled or harassed by charlatans,”; (9) degradation of the “quality of the consumer’s experience,” (10) “tour guides . . . too unserious to be willing to study for a single exam,” and (11) tour guides “abandon[ing tourists] in some far-flung spot, or charg[ing] them additional amounts to take them back.” Edwards v. District of Columbia, 943 F. Supp. 2d 109, 122 (D.D.C., 2013).

[18] Edwards, 755 F.3d at 1003.

[19] Id. at 1007-1009.

[20] See O’Brien, supra.

[21] E.g., consumer reviews on the Internet and a general business license. Edwards at 1007.

[22] Id. at 1008.

Lack of Consideration Could Lead to Lack of Protection

Author: Brynn Stylinski, Contributing Member, University of Cincinnati Law Review

Discrimination and equal pay have been brought back into the public eye through recent celebrity revelations of huge disparities between the salaries of actors and actresses and the boycott of the Oscars by several stars. These issues have long been a part of our society, however, and courts have attempted to navigate protective legislation such as Title VII in many different ways over the years. Earlier this year, the Seventh Circuit addressed the case of a Mexican-American woman who believed Continue reading