Charleston has finally joined the growing list of U.S. cities facing legal action for the regulation of tour guides. Plaintiffs represented by the Institute for Justice, a libertarian public interest law firm based in Virginia, argue that the city’s licensing of tour guides violates their First Amendment rights.
Institute for Justice attorney Robert McNamara says the group filed their first tour guide lawsuit in 2008 in response to a City of Philadelphia requirement that tour guides pass an exam. For McNamara, the city’s rules were a clear free speech violation.
“I thought to myself, ‘Surely someone is going to tell these people the First Amendment exists and that you can’t restrict people’s ability to talk about the city they live in,’” says McNamara. “That was really the first I had ever heard of tour guide licensing. We sued in Philadelphia, and that’s where we learned that Philadelphia wasn’t alone. There were other cities that have longer-standing tour guide licensing laws. That’s the genesis of this and why it’s become an issue now.”
City representatives released a brief statement regarding the lawsuit filed Thursday, saying, “The City of Charleston feels that it is inappropriate at this time to comment until they see the lawsuit. However, staff feels that our licensing program is sound and serves the public interest.”
In Charleston, tour guides must pay a $50 registration fee and pass both a 200-question written exam and an oral test. In order to earn a license, applicants need to score 80 or better on the test, which includes true-false and multiple choice questions. Only four test dates are set for 2016, but potential guides can also apply for a temporary license in the meantime that will allow them to begin operating.
Recent court decisions in other major cities have gone both ways on whether licensing guides violates free speech.
Judges in New Orleans agree with Charleston officials when it comes to regulating tours, deciding in favor of the city’s requirements, which include an exam, a clean criminal history, and a drug test. In that case, the U.S. Court of Appeals for the Fifth Circuit upheld the city’s rules, finding that the “New Orleans law in its requirements for a license has no effect whatsoever on the content of what tour guides say. Those who have the license can speak as they please, and that would apply to almost any vocation that may be licensed. Tour guides may talk, but what they say is not regulated or affected by New Orleans.”
In 2014, judges with U.S. Court of Appeals ruled against Washington, D.C.’s tour guides licensing laws. Prior to the court’s ruling, applicants were required to pay $200 and pass a 100-question exam or face a possible fine of $300 and up to 90 days in jail. In that case, judges ruled in favor of the Segway rental and tour business Segs in the City, finding that “There is little mystery, therefore, that tour guides possess every incentive to provide quality tours. With this concept in mind, what, pray tell, does passing the exam have to do with regulating unscrupulous tour businesses and unethical guides? ... Surely, success on the District’s history exam cannot be thought to impart both knowledge and virtue.”
The previous tour guide ruling in New Orleans was actually acknowledged by the judges in the D.C. case, who declined to follow that precedent on the grounds that the decision either did not discuss, or gave cursory treatment to, significant legal issues.
Following the ruling in D.C., former Charleston Mayor Joseph P. Riley Jr. defended the city’s licensing practices, saying, “People visit Charleston largely for its history, architecture, and landmarks. They expect and assume they will be given correct information, and our tour guide regulations are designed to achieve that goal. Our ordinance requires a tour guide to be knowledgeable of where and at what times tours can be conducted, which is essential because Charleston is a living city with many residential areas woven within the fabric of our historic district.”
He added, “If the tour guides are not regulated, we have no way of receiving complaints and taking action to correct a guide’s misconduct or the spreading of false information.”
Riley’s statements came just months after one of the city’s pedicab drivers was issued a fine of more than $1,000 for giving an unlicensed historical tour following a sting operation by local police. McNamara says he has not been in contact with anyone regarding that case.
Even though the Institute for Justice lost the New Orleans case, attorneys with the group feel confident with their Charleston suit. McNamara argues that the city’s ordinances are specifically focused on policing exactly what tour guides say to customers, thus violating free speech.
“Charleston is the only city where there’s been tour guide lawsuits that not only requires tour guides to pass a written exam, but also requires them to pass an oral exam,” he says. “You have to go in and talk about the city, and the city official decides whether or not you’re going to be allowed to talk to tour groups. ... You can apply for a temporary tour guide license, but the only way to get a temporary license is to give the city an actual script of what you plan to say, so a government official can again vet it for accuracy.”
McNamara’s not wrong about the script. The city’s code specifically requires temporary guides and their required sponsoring employers to prepare and file a script to be used by the guide. That script must be “approved for accuracy” by the tourism director or a designated assistant, according to the ordinance.
“Charleston’s licensing scheme is aimed purely at speech, and that’s going to make it very difficult for them to defend in court,” says McNamara. “They are just worried about what people are going to say, and they want to be in the business of making sure that the only people who are allowed to talk are people they approve. The First Amendment doesn’t allow that. Charleston can’t be in the business of ensuring that tour guides are knowledgeable anymore than Charleston can be in the business of ensuring that journalists are thorough or that stand-up comedians are funny. We rely on audiences to decide that.”