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.
