Both sides face setbacks in legal battle over Charleston’s tour guide laws

The Guiding Fight

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FLICKR USER TORREY WILEY
  • Flickr user Torrey Wiley
A federal judge has denied the City of Charleston’s request to dismiss a lawsuit that claims the city’s tour guide licensing laws violate free speech.

Charleston joined the list of major American cities forced to defend tour guide regulations earlier this year when three plaintiffs backed by the Institute for Justice, a libertarian public interest law firm based in Virginia, filed suit against the city. According to ruling made earlier this month, U.S. District Judge David Norton rejected the city’s attempt to have the case thrown out, but it wasn’t all bad news for city attorneys. Norton also denied the plaintiff’s request for a preliminary injunction, which would have prohibited the city from enforcing tour guide licensing requirements.

The three plaintiffs in the case previously failed to pass the city’s requirements to become licensed tour guides, which at the time included both a written and oral exam. In April, after the suit was brought against Charleston, City Council voted to amend the tour guide ordinance. Under the new rules, the oral examination was nixed and the passing grade on the written exam was reduced from 80 percent to 70 percent. These changes became effective retroactively, which means that two of the three plaintiffs are now eligible to obtain tour guide licenses.

While the ultimate fate of Charleston’s tour guide laws has yet to be decided, similar legal battles have already been waged in other major tourist destinations across the country. In 2014, judges with the U.S. Court of Appeals ruled against Washington, D.C.’s tour guides licensing laws. Tour guide regulations in New Orleans were upheld by the U.S. Court of Appeals for the Fifth Circuit, which found that the city’s laws have no effect on the content of what a tour guide says. Attorneys for Charleston argue that the city’s licensing rules only regulate the act of charging money for tour guide services, which means you are allowed to tell your friends and family all about the rich local history as long as you don’t ask for any money. The city justifies the licensing requirement as a way to protect Charleston’s tourism economy by ensuring that guides have a “base level of competency to provide the touring services they are charging for.”

On the other side of the argument, the plaintiffs allege that the license requirement is motivated by an intent to influence what tour guides say — a claim that Judge Norton wasn’t willing to overlook.

“Given the written examination’s focus on certain topics, it is fair to say that the examination provides some indication that the city holds particular views about what information a ‘competent’ tour guide would convey and that the licensing regime is an attempt to restrict speech that does not convey such information,” wrote Norton in a motion.

As part of his recent decision to not dismiss the case, Norton says that the city must provide some evidence that unqualified tour guides pose some threat to the local tourism industry and that the current licensing system is the best way to protect customers. But even with this ruling, those hoping to overturn the city’s licensing requirements still have a long way to go. In ruling against the plaintiffs’ motion for preliminary injunction, the judge found that the city’s regulations “burden a rather small range of speech” and those willing to provide tours for no charge are free to do so. So, while it remains to be seen whether or not Charleston’s tour guide laws are unjust, both sides have their work cut out for them.


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