flickr user Spencer Means
The constitutionality of Charleston’s tour guide laws remain in question as the city fights to maintain its licensing requirements.
Last year, Charleston joined the list of U.S. cities to have had their regulation of tour guides challenged by the Institute for Justice, a libertarian public interest law firm based in Virginia. Arguing on behalf of three local tour guides who brought suit against the city, IJ attorney Arif Panju claims that Charleston’s requirement that all paid tour guides pass a written exam and be licensed by the city violates their First Amendment rights.
Calling for a summary judgement in their favor Thursday, Panju argued that the city is using its testing and licensing requirements to influence what guides tell customers by indicating a “content preference.” In 2014, judges with U.S. Court of Appeals ruled against Washington, D.C.’s tour guide 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 Charleston, the penalty is a fine of up to $500 or 30 days in jail.
Facing a similar legal challenge as Charleston, the city of Savannah eliminated permitting requirements such as a tour guide test and licensing fee. Following that change in 2015, tour companies are now only required to obtain a business tax certificate and register their tour guides with the city.
Following the initial lawsuits against Charleston in 2016, City Council voted to amend the tour guide ordinance, doing away with a mandatory oral examination and reducing the passing grade on the written exam from 80 to 70 percent. The three plaintiffs in the case had previously failed to pass the city’s tests to become licensed tour guides. Last year’s changes to the city ordinance were effective retroactively, meaning two of the three plaintiffs became eligible to obtain their licenses.
When asked if the change in the ordinance was in response to the lawsuit, Mayor John Tecklenburg said in a November deposition, “Partly. But as I explained to you, I had some of my own individual concerns. It’s something I felt like — well, I know I would have gotten around to doing. I was just a month into being mayor. So, again, it wasn’t like a top priority for me, but the combination of having concerns about it and being sued about it — yeah, you go ahead and look at it.”
The city contends that the current requirements are less about dictating what tour guides say and more about protecting customers from being swindled by uninformed guides. Absent the licensing requirement, city attorneys argue that Charleston would be deprived its most effective tool for protecting the tourism industry and overall reputation as a tourism destination.
Discussing his belief in a need for the city’s testing requirements in a November deposition, former mayor Joseph P. Riley Jr. stated, “People come here and they get ripped off or someone says, “Well, I’ll give you a tour,” and they don’t have the basic knowledge and give you a bunch of bum information that they eventually find that was bogus ... [the license] says they have an occupational certification that at least certifies that you have studied the subject and learned this subject and, therefore, have a basis of knowledge and expertise to be able to provide information.”
In court Thursday, Panju argued that less burdensome measures could be taken to protect customers looking to take a tour in Charleston, such as requiring guides to simply register with the city.
Tim Dillinger, a licensed Charleston tour guide, believes that revoking the city’s tour guide test requirements would negatively impact the tourism industry and Charleston as a whole. As a tour guide, Dillinger said he has never felt that his right to free speech has been challenged by the city.
“You have to have a basic knowledge to be able to stand up for the city of Charleston,” Dillinger said following Thursday’s hearing. “And I will also say this on record: I didn’t pass the test the first time. I didn’t pass the test the second time. But I went and studied and learned and earned the right to say that I am a licensed Charleston tour guide.”
U.S. District Judge David Norton did not immediately rule on the requests for a summary judgement. When asked by the judge how long proceedings would last if this case went to trial, Panju estimated two to three days.
“The First Amendment protects people’s rights to earn a living by talking. Tour guides tell stories for a living,” said Panju following the hearing. “The city of Charleston tells people they have to remain silent unless they pass a test and prove to the government that they know what the government wants them to know and talk about. That’s unconstitutional under the First Amendment.”