By Mia B. Ragent; Staff Member (Vol. 14)
Do tour guide licensing requirements violate the Free Speech Clause? In the past year, tour guides in two major tourist-destination cities challenged licensing schemes to two different results. For guides in the city of New Orleans, the Fifth Circuit held that the enforcement of tour guide regulations served an important governmental purpose and was within the confines of its police power to implement. Kagan v. City of New Orleans, La., 753 F.3d 560 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403, 191 L. Ed. 2d 361 (2015). The D.C. Circuit struck down a similar Washington D.C. regulation on the grounds that the government interest was not great enough, nor was the regulation sufficiently tailored to pass an intermediate scrutiny test. Edwards v. D.C., 755 F.3d 996 (D.C. Cir. 2014). The D.C. Circuit opinion concluded that while content-neutral, the licensing scheme was not implemented in the least restrictive way possible, a requirement for even facially-neutral laws. Id.
This blog post argues that the D.C. Circuit holding was appropriate while the Fifth Circuit holding was not, because both regulations chilled speech for essentially non-existent problems.
Founding Fathers & Bayou Ghosts
In 2014, five major cities across the country mandated that a private tour guide be licensed before conducting any tours, including Washington, D.C. and New Orleans, Louisiana. In Washington, D.C., the owners of Segs in the City , a Segway tour company based out of the capital, challenged the licensing scheme. The company, whose logo is a fusion of a hot pink martini glass and Segway Human Transporter, takes customers on “Segway Safari” adventures through monuments, past museums, and onto the off-road terrain of the National Mall.
The New Orleans regulations were challenged as well. These plaintiffs lead a variety of tours, the topics of which include regional cuisine, neighborhood history, and ghost and vampire folklore. While the tour experience may vary dramatically in the two cities, the licensing laws were nearly identical.
The licensing schemes in both Washington D.C. and New Orleans were content-neutral—they did not regulate what a tour guide could or could not say. Instead, they each required that guides pay a fee and pass both a background check and an extensive history exam in order to lead a tour (New Orleans required an additional drug test as well). In both cities, the governments stated that the regulations were necessary to protect basic public safety and the tourism industry. Brief of Defendant-Appellee at 11, Edwards v. District of Columbia , No. 13-7064 (D.C. Cir. 2013); Brief in Opposition at 1, Kagan v. City of New Orleans , No. 14-585 (U.S. 2015).
Licensing Schemes Lack Muster to Pass Heightened Scrutiny
Neither court considered the regulation of tour guide speech to be a regulation of commercial speech (expressions related solely to the economic interests of the speaker which are not inherently protected), but both applied the intermediate scrutiny test for commercial speech established in Central Hudson, because the licensing schemes regulated an economic activity with inherent expressive speech. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 573, 100 S. Ct. 2343, 2355, 65 L. Ed. 2d 341 (1980). Central Hudson held that speech suppression is permitted whenever it directly advances a substantial governmental interest and is not more extensive than is necessary to serve that interest. Id.
The Central Hudson test requires that a law infringing on the First Amendment must meet five specifications: (1) it is within the constitutional power of the Government; (2) it 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. Id at 2531.
For the New Orleans regulation, the Fifth Circuit reasoned that the licensing process was content-neutral (it did not dictate what a tour guide could/could not say on a tour), and that requirement of a drug test and a history exam furthered the city’s substantial interests in protecting both the tourism industry and the public from criminals. Kagan v. City of New Orleans La. , 753 F.3d 560 (5th Cir. 2014).
For the D.C. regulation, however, the D.C. Circuit held the District had failed to present any evidence that the problems it sought to thwart actually existed. What’s more, the court asserted that the government failed to demonstrate that the exam was an appropriately tailored antidote. Finally, the court concluded that the District had provided no explanation for using less restrictive but more effective means of accomplishing its objectives. Edwards v. D.C. , 755 F.3d 996 (D.C. Cir. 2014) .
While the two courts agreed on how to apply the majority of the Central Hudson test, they disagreed that the respective cities had an important or substantial interest at stake, and that the restriction on the First Amendment freedoms were no greater than necessary to protect that interest. The Fifth Circuit appeared to accept New Orleans’ rationale at face value, concluding that “without those protections for the city and its visitors, the government interest would be unserved.” Kagan v. City of New Orleans, 753 F.3d 560 at 561 ( 5th Cir. 2014). The court reached this conclusion even though the city only produced two total instances of unlicensed tour guides, and there was no evidence that these guides had harmed or defrauded anyone. Id.
The D.C. Circuit took a more probing look into the problem that was sought to be remedied by the regulation, and found similarly laughable statistics, in addition to irreconcilable theories on market forces and crime prevention. “What, pray tell, does passing the exam have to do with regulating unscrupulous tour businesses and unethical guides? How does memorization of addresses and other, pettifogging data about the District’s points of interest protect tourists from being swindled or harassed by charlatans?—surely, success on the District’s history exam cannot be thought to impart both knowledge and virtue.” Edwards v. D.C., 755 F.3d 996 at 1007 (D.C. Cir. 2014) .
The D.C. Circuit agreed that public safety and tourism could produce substantial government interests, but with a proper examination of the facts at hand properly concluded that the regulation was unnecessary to constitute an acceptable limitation on protected speech under the Central Hudson test.
Implications Beyond Segway Tours
Whether or not to tip a guide who makes corny jokes or breathes too heavily into the microphone is up for debate, but whether or not these licensing schemes stifle free speech should not be. The D.C. Circuit was correct in holding that under an intermediate scrutiny analysis, the regulatory scheme prevented tour guide operators from becoming licensed, and therefore pre-chilled their speech. It was neither sufficiently narrowly tailored, nor had the city proven the harm that necessitated regulation in the first place.
While tour guide licensing may seem mundane, the issue of regulation of unlicensed professionals bleeds into every aspect of modern life. Occupational licensing requirements are currently being litigated in lower courts across the country, with many plaintiffs raising First Amendment objections. From a diet blogger in North Carolina, Cooksey v. Futrell , 721 F.3d 226 (4th Cir. 2013), to a virtual veterinarian in Texas, Hines v. Alldredge , 783 F.3d 197 (5th Cir. 2015), to a newspaper advice columnist in Kentucky, Rosemond v. Markham , No. CV 13-42-GFVT, 2015 WL 5769091 (E.D. Ky. Sept. 30, 2015), what a locality may censor and when exactly an intermediate scrutiny test is appropriate are questions left unanswered by the Supreme Court. New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551, D.C. Mun. Regs. tit. 19, § 1200.1 (2010)