Savannah’s tour guide test really will be put to the test by new lawsuit

UPDATE: Check out a fascinating piece from the AP: High Court Asked to Rule on Tour-Guide Licensing

From that piece:

On the heels of conflicting rulings from two appellate courts, a Virginia-based group wants the U.S. Supreme Court to decide whether cities are within their rights to demand that tour guides be licensed. The Institute for Justice says the rules amount to a “license to speak” — an unconstitutional restriction of First Amendment rights. Lawyers say a ruling could have a profound effect on anyone who talks for a living.

On Monday, the institute filed a lawsuit challenging a law on tour guides in Savannah, Georgia. The group said it will formally file its petition to the Supreme Court on Tuesday. In the past, the institute has filed challenges to what it sees as overzealous licensing schemes, in occupations such as hair braiders, yoga teachers and casket makers.

ORIGINAL POST: First, here’s today’s press release from the Institute for Justice, a nonprofit organization with a mission of “engaging in cutting-edge litigation and advocacy both in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government.”

MEDIA ADVISORY

NEWS CONFERENCE TOMORROW:
Tour Guides In Savannah Sue To End City’s Licensing Requirement

TIME & LOCATION:
10 a.m. Tuesday, November 18, 2014
Johnson Square
Corner of Bull and Bryan Streets
Historic District – North
Savannah, GA 31401

NEWS CONFERENCE PARTICIPANTS:
Robert McNamara, senior attorney, Institute for Justice
Robert Everett Johnson, attorney, Institute for Justice
Michelle Freenor, plaintiff; owner, Savannah Belle Walking Tours
Jean Soderlind, plaintiff; operator, Ghost Talk, Ghost Walk
Steven Freenor, plaintiff; high school teacher and college professor

SUMMARY:
Savannah, Ga.—Tomorrow, a coalition of current and would-be Savannah tour guides, represented by the Institute for Justice, will announce the filing of a major federal lawsuit seeking to vindicate an important First Amendment principle: The government cannot require a license to tell a story.

For years, the city of Savannah has required tour guides to run a bureaucratic gauntlet of requirements to obtain a license before they can lead a tour. Guides are required to take a multiple-choice test on the city’s history, undergo a criminal background check and produce a certificate from a doctor verifying that they are sufficiently healthy to talk. Anyone who leads a tour without a license risks fines, jail time or even forced participation in a municipal “work gang.”

This is the fourth challenge to a tour guide licensing scheme filed by the Institute for Justice. Earlier this year, a federal appellate court in Washington, D.C. struck down that city’s licensing requirement for tour guides as a violation of the First Amendment.

Founded in 1991, the Institute for Justice is the national law firm for liberty.

For background info, check out my City Talk column from August: Free speech ruling puts Savannah’s tour guide test to the test

I don’t know how the city of Savannah will respond (I’m guessing that they won’t do what I think they should do . . . ), and I’ll likely write about this issue in another City Talk column very soon, so I’ll hold off for now on analyzing the issue in depth.

But let me go ahead and share some passages from the U.S. Court of Appeals for the D.C. Circuit’s opinion striking down a tour guide test in Washington, D.C. that seems ver similar to Savannah’s test. From that U.S. Court of Appeals ruling:

BROWN, Circuit Judge: This case is about speech and
whether the government’s regulations actually accomplish
their intended purpose. Unsurprisingly, the government
answers in the affirmative. But when, as occurred here,
explaining how the regulations do so renders the
government’s counsel literally speechless, we are constrained
to disagree.
In Washington, D.C., it is illegal to talk about points of
interest or the history of the city while escorting or guiding a
person who paid you to do so—that is, unless you pay the
government $200 and pass a 100-question multiple-choice
exam. The District requires that certain tour guides obtain a
tour-guide license, which can be procured by paying
application, license, and exam fees totaling $200, and passing
the exam, of course. Operating as a paid, unlicensed tour
guide is punishable by up to 90 days in jail or a fine of up to
$300, or both. Believing the licensing scheme to be an
unconstitutional, content-based restriction of their First
Amendment rights, Appellants, Tonia Edwards and Bill Main,
refused to comply and filed suit in district court. The court
ultimately upheld the regulations, reasoning the scheme
placed only incidental burdens on speech that were no greater
than necessary to further the District’s substantial interest in
promoting the tourism industry. Finding the record wholly
devoid of evidence supporting the burdens the challenged 3
regulations impose on Appellants’ speech, we reverse and
remand.

And:

The District rehearses a plethora of harms it claims to
forestall with the exam requirement: (1) unscrupulous
businesses, Edwards, 943 F. Supp. 2d at 122; (2) tourists
whose welfare is jeopardized by tour guides lacking a
minimal level of competence and knowledge, id.; (3) tour
guides lacking “minimal knowledge about what and where
they are guiding or directing people to,” id.; (4) consumers
unprotected from unknowledgeable, untrustworthy,
unqualified tour guides, id. at 123; (5) tour guides lacking “at
least a minimal grasp of the history and geography of
Washington, D.C.,” id.; (6) visitors vulnerable to “unethical,
or uninformed guides,” id.; (7) tourists treated unfairly or
unsafely, see Appellee’s Br. at 24; (8) tourists who are
“swindled or harassed by charlatans,” see id.; (9) degradation
of the “quality of the consumer’s experience,” see id. at 36;
(10) “tour guides . . . too unserious to be willing to study for a
single exam,” see id.; and (11) tour guides “abandon[ing 13
tourists] in some far-flung spot, or charg[ing] them additional
amounts to take them back,” see id. at 38. Together, these
harms all fall under the banner of the District’s interest in
“maintaining, protecting, and promoting [its] tourism industry
and economy.” See Appellee’s Br. at 19.
Despite the District’s seemingly talismanic reliance on
these asserted problems, the record contains no evidence
ill-informed guides are indeed a problem for the District’s
tourism industry. The only record “evidence” supporting the
District’s beliefs regarding the perils of unlicensed tour
guides is the District’s 30(b)(6) deposition testimony that
guides with criminal convictions might pose a danger, though
no evidence exists they actually have. See J.A. 154. This
will not do. See Turner Broadcasting Sys., Inc. v. FCC, 520
U.S. 180, 196 (“[I]n the realm of First Amendment
questions[,] . . . the [legislature] must base its conclusions
upon substantial evidence.”). The District’s reliance on a
Washington Post article dating from 1927 to justify the exam
requirement is equally underwhelming. See Appellee’s Br. at
4, 19, 46. The article merely establishes that, nearly a
century ago, the newspaper expressed concern about
unscrupulous or fraudulent charitable solicitation and that an
unidentified number of persons said self-styled tour guides
were overly aggressive in soliciting business. Reliance on
decades-old evidence says nothing of the present state of
affairs. Current burdens demand contemporary evidence.
See Shelby Cnty. Ala. v. Holder, 133 S. Ct. 2612, 2627 (2013)
(“[A] statute’s current burdens must be justified by current
needs.”); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 802 (1988) (rejecting the government’s reliance on
antiquated evidence to justify current burdens); Nashville, C.
& St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935) (“A statute
valid when enacted may become invalid by change in the
conditions to which it is applied.”). 14
Nor are the District’s suppositions validated by studies,
anecdotal evidence, history, consensus, or common sense.
The District says “many other cities . . . have concluded that
licensing tour guides is warranted to promote the tourism
industry and protect consumers.” Appellee’s Br. at 46. By
“many,” the District means exactly five.5
Yet, whatever the
value of this evidence, it is diminished to the vanishing point
by the scores of other U.S. cities that have determined
licensing tour guides is not necessary to maintain, protect, or
promote the tourism industry. Said differently, five cities do
not a consensus make.

And:

Even if we indulged the District’s apparently active
imagination, the record is equally wanting of evidence the
exam regulation actually furthers the District’s interest in
preventing the stated harms. Curiously, the District trumpets
as a redeeming quality the fact that, once licensed, “[t]our
guides may say whatever they wish about any site, or
anything else for that matter.” Appellee’s Br. at 27 (citing
Kagan v. City of New Orleans, 957 F. Supp. 2d 774, 779
(E.D. La. 2013)). But we are left nonplussed. Exactly how
does a tour guide with carte blanche to—Heaven 17
forfend—call the White House the Washington Monument
further the District’s interest in ensuring a quality consumer
experience?6
Also puzzling is the applicability of the exam
requirement to specialty tour guides, such as those focused on
ghost, food or movie tours.7
A general exam requirement is
ill-suited to ensuring such specialty guides are well informed.
And the existence and persistence of such varied themes
highlights how tourism is as much about entertaining as
educating.

It’s a really entertaining opinion, and well worth a slow read. It will be interesting to see how city officials respond.