IJ: City Tour guide licensing is unconstitutional

Counterpoint: Tour guide licensing is unconstitutional
Posted: October 31, 2015 - 4:12pm | Updated: October 31, 2015 - 11:05pm
By ROBERT EVERETT JOHNSON
The Institute for Justice
Arlington, Va.

Your Oct. 25 editorial argued that the First Amendment case against tour guide licensing is “all fluff and bluff.” Respectfully, there is nothing insubstantial about tour guides’ constitutional rights.
Tour guides are storytellers. Some tell stories about history, some tell stories about ghosts and some focus on other topics altogether — be that food, drink, gardens or architecture. Whatever the focus of their tours, guides make a living through the spoken word.
In St. Augustine, tour guides must obtain a license from the government in order to tell their stories. That requirement is flatly unconstitutional: Under the First Amendment, you do not need a license to talk.
Imagine if the government imposed that same requirement on others who make their living telling stories. The government might license comedians to be sure they have a cutting sense of humor; or the government might license novelists to be sure they can pace a plot. Perhaps the government could even license editorial writers to be sure their facts are accurate.
At the Institute for Justice, we have filed lawsuits in four different cities to challenge tour guide licensing. We lost only once, when a federal court in New Orleans upheld that city’s licensing law. A federal court in Washington, D.C., struck down that city’s law. And two cities, Savannah and Philadelphia, decided to abandon their licensing laws rather than defend them in court.
Saturday’s editorial accused us of “fudging the facts” about this history and suggested that St. Augustine’s City Attorney is in “possession of those facts.” Unfortunately, it appears the city attorney led the paper astray.
Your editorial suggested the New Orleans defeat came after the victory in D.C. In fact the opposite is true. On this issue, momentum is on the side of the tour guides.
Indeed, the D.C. court was aware of the New Orleans decision but found it unpersuasive. The D.C. court explained that, in its view, the New Orleans court “either did not discuss, or gave cursory treatment to, significant legal issues.”
Saturday’s editorial also suggested that the Supreme Court’s failure to reconsider the New Orleans decision gives the district court “reason to rule in favor of Savannah.” Again, that is not true.
The Supreme Court is asked to hear approximately 10,000 cases every year, but it grants review in fewer than 100. The Supreme Court has repeatedly said that district courts should not assume that it agrees with the lower court decisions in the 9,900 cases that it does not hear.
Meanwhile, Savannah’s City Attorney also led the paper astray when he stated that recent amendments to Savannah’s law “had little to do with the lawsuit.” At a recent meeting, the city attorney urged the city council to move quickly to approve the amendments, candidly explaining that “we have a pending motion in a lawsuit that we’re trying to get rid of.”
Nor is it true that “testing” is the “only part of the lawsuit the city acquiesced to.” The recent amendments to Savannah’s law eliminated the city’s entire licensing regime — including the requirement to submit an application and undergo a background check.
It is ironic that the city attorneys for Savannah and St. Augustine would flub so many basic facts, when they are arguing that government should be allowed to police the accuracy of tour guides.
The city attorneys’ factual errors are revealing: Evidently government officials are not infallible arbiters of truth. That is why we have the First Amendment, and that is why government bureaucrats are not allowed to decide who is qualified to speak.
Johnson is the Elfie Gallun Fellow for Freedom and the Constitution at the Institute for Justice (IJ). He represented the Savannah tour guides in their fight against that city’s tour guide licensing law.