The Institute for Justice is challenging Philadelphia's new requirement that tour guides be licensed and take special history and geography exams. IJ seems to be exactly right on this: Such a requirement violates the First Amendment.
The government surely couldn't require that authors of history books or travel books be licensed and take exams. Nor can it require the same as to producers of travel documentary DVDs, or actors in theaters that present history/geography-related informational entertainment.
Such restrictions would be seen as unconstitutional content-based prior restraints, even if they don't purport to directly control (say, through loss of license) what is said: They bar speakers from speaking until a license is received, they are justified by the desire to prevent speech with a bad content, and they apply only to speakers who would convey a particular sort of content (history or geography in my hypotheticals).
The answer isn't any different for tours, which are likewise a form of history-/geography-related infotainment. They are speech in the quite literal sense of the word, and they are no less constitutionally protected than are books, videos, or plays.
None of this speaks to content-neutral requirements aimed at non-content-related harms, for instance requirements that theaters provide ample fire exits, or that tour operators use only licensed drivers and carry adequate liability insurance. But the Philadelphia requirements, as I mentioned, apply to speech of a particular content (tours that "provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest"), and they are aimed at preventing allegedly misleading content. To make things even clearer, an exemption for tour companies that educate their own guides is applicable only after a content-based judgment on the city's part -- "[i]f the Department determines that the educational program and method of evaluating tour guides is equivalent to or exceeds the written examination required by this Section" -- though even if this exemption was removed, the rest of the ordinance would still impose an unconstitutional content-based prior restraint.
Just to anticipate some rebuttals: (1) Tour guide speech doesn't fit within the "commercial speech" zone of lowered protection, because that zone basically covers only commercial advertising, not speech sold for money (or else ordinary books, newspapers, movies, plays, and the like would generally be "commercial speech" so long as customers had to pay for them). (2) Nor can such licensing and testing systems be justified by general consumer protection rationales, or by a theory that sellers of speech are engaging in misleading advertising when they promote "historical tours" that teach bad history; again, consider the analogy of books, videos, and the like. (3) Licensing and testing is of course commonplace for professional-client business relationships, including ones that chiefly consist of speech, such as lawyer-client or psychotherapist-client relationships; but the premise there is that these involve personal advice aimed at a particular person's situation, and usually in high-stakes contexts -- they surely don't apply to tour guide / patron relationships any more than to author / reader relationships. (4) Naturally, the government as employer may impose various credentialing requirements on employees who talk on its behalf, but that's not what's going on here.
If the government is really worried about tourists' being misled, and the problems not being resolved through market pressure (tours, after all, don't like online criticisms, or people telling their hotels' concierges what a bum recommendation the concierge had given), the government can easily set up an optional "Seal of Approval" system; and tours that get the Seal will surely promote it as a sign of superiority over others that don't have the Seal. But mandatory content-based licensing and examination requirements for speakers are unconstitutional, and a very bad precedent that could easily be extended to other classes of speakers as well.
-- Does one need a license to freely exercise one's religion?
-- Does one need a license from the gov't in order to be free of un-
reasonable searches &seizures?
-- A license from the gov't granting leave to cross-examine witnesses?
-- To keep &bear arms? Oops, ...
I have never understood why anyone would think it reasonable that a constitutional right should require permission of the gov't to excercise that right.
Essentially, if the city is simply imposing an education requirement, in a sense, the city isn't regulating the content of speech at all. The tourist guides can still teach whatever they want to and need not convey the officially approved history. They simply need to pass a test and demonstrate familiarity with the narrative.
Thus, doctrinally, you have a content-neutral restriction that burdens speech. However, this isn't a time, place, or manner restriction. Rather, it is intended to influence the content, even if the tourist guides retain the freedom to say whatever they want.
So, the question is, what is the level of scrutiny applied to a content-neutral restriction which is not a time, place, or manner restriction. And the answer is, I am not sure this is a settled question of First Amendment doctrine. It might be strict scrutiny, it might be intermediate scrutiny.
That said, however, the reason I would tentatively come down on Prof. Volokh's side is that even under a lesser level of scrutiny, it doesn't seem like any particularly important state interests are being served here.
Dilan Esper: It's not just that the testing requirement is justified by a concern about content. It's also applied only to people who speak on certain subjects, so it's not a "content-neutral restriction" even on its face.
Plus even if this were a content-neutral restriction, it would delay speakers by far longer than most such requirements would: One can't get a license at all until after one passes the exam, which could take a few weeks if one passes the first time around, or months if one has to take the exam more than once.
Alternatively, they suggest the government simply ignores inconvenient constitutional questions. You can make the observation you did but it doesn't really lead anywhere.
But there are examples that hew to the realm of speech rather than privacy. You may express yourself with a neon sign, but to have it installed in a business you may need to do business with a licensed electrician. You may say what you like with skywriting or on the side of a blimp, but you must use a licensed pilot and follow FAA requirements.
The purpose of licensing in all these cases is to regulate safety, not to restrict or influence expression. The electrician knows how to install high-voltage systems without setting the building on fire. The pilot knows how to fly a plane or a blimp without killing people.
Licensing tour guides on the basis of their knowledge of history has no such safety aspect. Teaching bad history does not kill people, the way that flying a plane badly or doing bad electrical wiring can.
Suppose that I wrote a series of books called "Easy Arabic for Americans" purporting to teach Arabic, and I have a bunch of related products -- language videos, lectures, etc. At some point someone realizes that all I am doing is drawing squiggles and talking nonsense in a fake accent a la Sid Caesar.
It seems to me that the government -- say, a state AG armed with consumer protection statutes -- could take rather aggressive action to shut me down, plus I'd be subject to liability to my customers at common law.
If I claimed a First Amendment defense to all that, I'm pretty certain I'd be laughed out of court.
The government has police powers, but it too often uses them to protect certain classes, unions and other groups from competition.
The other day I watched a documentary on the History Channel which had several glaring errors about the war between Persia and the Greeks in Herodotus. Should the History Channel lose a license to broadcast?
(1) Laws requiring attendence at schools, which compel students to listen to government-mandated speech and with tests compel students to express themselves in specific government-sanctioned ways.
(2) Laws requiring bar membership (which usually requires passing a test, again government-compelled speech) in order to practice law.
Indeed, both in bar exams and public school exams the "correct" answers are often highly political in nature: they not only compel speech, and constitute a prior restraint on speaking in a contradictory manner, but the speech compelled by these exams often involves the core of the First Amendment, political opinion, not just demonstration of commercial or occupational knowledge. Government-mandated exams generally should fall to the First Amendment, but I'm not holding my breath.
What if you said it was satire?
I'd go a bit further. I think that publishing a book that falsely claims to teach anything (or to otherwise discourse on anything) would be protected. Otherwise books on how to live longer and healthier with a peanuts and beer diet would be subject to prosecution. And people still sell The Protocols of the Elders of Zion.
I don't care what else you have to say. You must go do this immediately because it would be awesome.
I think a city "Official Licensed Guide" program that was voluntary might be the best of both worlds, as it would give a competitive advantage to the more qualified.
Are you assuming the predominant function of a tour guide is to provide commentary, not the service of leading (by foot) or transporting (by bus) customers to a series of pre-agreed locations? I don't have an opinion about which function predominates, but re: the latter it's commonplace for taxi and bus drivers to be test-licensed to assure they know how to get where they agree to take you.
1) It is restricted to people conducting tours for pay on public property. Anyone can say what they want about history, even on public property in the covered distric, provided they just stand still.
2) Or they could stay on private property
3) Or they can volunteer rather than accept pay.
4) Or they can publish material for a self-guided tour.
5) It doesn't require they either say anything specific or avoid saying anything particular. Only that they demonstrate that they know some history. They can say the Ben Franklin was a Martian hermaphrodite who visited Philadelphia between March 2, 1839 and January 34th 1927 if they want to, without running afoul of the statute. Just not on the exam paper (I assume).
The law is certainly foolish, but I am not sure it is unconstitutional. And it
http://www.gettysburgtourguides.org/
Isn't there a perfectly adequate consumer protection rationale here? Guides are marketing themselves as people who are knowledgeable about Philly history and geography; why would anyone want a guide who isn't? Just as I imagine Philly has an interest in making sure that would-be guides aren't scam artists or dangerous felons.
Color me untroubled.
Here's my 25 cent tour of philadephia. Stop reading this comment if you don't agree to pay me $0.25. Let's start in the center of the city, at 14th and Market. There's city hall, with the statute by Calder on top. Grandson is the Calder who did the clothespin, I think. To the northeast is chinatown. Try the dim sum. To the east at 6th st is the liberty bell, and the new fence around it to keep out people like you. Further east is Penn's landing. (Story of trial of Penn.) Next stop is south street, from 10th to 2nd, home of the philly cheese steak and the Wooden Shoe anarchist bookstore. Further south is little italy. Next stop is the farmer's market and the greyhound station and a bar called Judy's - used to belong to Judy Garland.
Ok, that's all you get for two bits. Buy me a beer at Judy's and I'll tell you more, like the Henry George House and Packet Alley and Kater Street and MOVE and Frank Rizzo.
To the south is the gayborhood. I suggest Dirty Franks and Govinda's.
The fact that there is more at stake when choosing a lawyer than a tour guide is a strong reason why, as a consumer protection measure, licencing lawyers makes more sense than licensing tour guides. It doesn't offer a reason why a bar exam is less of a restraint on speech than a tour guide exam. In fact, I suspect that neither the bar exam nor the guide exam are really intended to protect consumers--they are inteded to raise the prices of politicallly connected paractitioners by limiting competition. That was certainly the motive for the bar exam and requirements for law school, and I would be surprised if it weren't tour operators who pushed for Philly's statute. In fact, the requirement for law school was an explicit attempt (according to the then president of the ABA) to keep immigrant Jews, Irishmen and Italians out of the profession; if it were passed in the same fashion today it would run afoul of the 14th Amendment.
And the Philly statute doesn't stop anyone from speaking, or even charging to speak, about Philly's historic sites. It justs prevents him from guiding his customers from one site to the next while speaking.
For someone who purports to know so much about Phila., I gotta wonder where you came up with 14th St.?
Otherwise, not a bad tour for the money.
What if you said it was satire?"
If that doesn't work, use what I would call the "post-modern defense": Just point out that "everyone knows" that there is no such thing as the inherent meaning of a text. That your Arabic lessons just "privilege an alternative narrative."
That should work.
Does a barber's license exist, or am I missing some satire? Do I need a license for my pet fish, Eric?
It does in Pennsylvania, and every other state, as far as I know. What are you, Sikh? Or where do you live? Google "your state" and barber license.
Whereas statutes requiring bar membership really do restrict non-lawyers from engaging in a wide array of important kinds of speech about legal topics, and also forbid the expression of political opinions that happen to also fall within the category of forbidden legal opinions. The tour guide statute does not forbid the speech itself, but bar requirements do. Furthermore, the intention to influence later content is even more clear in the case of bar exams than in the case of tour guide exams: bar exams exist almost solely to influence the content of legal opinions. These tour guide exams arguably also exist to influence the content of tour guides' opinions about historical matters, but also exist to ensure that physical guiding and other content-neutral logistics are accomplished competently.
What's worse legal opinions, at least as much as opinions about history and geography, are very often opinions about politics. Indeed the legal profession is far more important to our political system than the tour guide profession. Our political system would be quite impossible without legal opinions, but tour guides are quite peripheral to it. Generally legal speech thus lies at the very core of First Amendment speech, whereas tour guide speech does not.
EV's "personal advice" distinction doesn't make any sense: why would the tour guide statute be fine if only one person is taking the tour but unconstitutional if five people are on the tour? If I give legal advice to a room full of executives without having passed the bar, am I protected by the First Amendment, whereas if I give legal advice to a single individual I am not so protected? Does the First Amendment really apply more to public speeches than to bar-room debates with your buddy? Why would the First Amendment no longer apply if the tour guide gave his client a personalized tour?
With both the Philadalphia tour guides and lawyers, government is compelling individuals to express themselves in very specific ways by requiring an examination. A test is filled with content, some of which the government deems "correct" and others of which it deems "incorrect". In both cases if you fail to express yourself in the specific ways government mandates as "correct" you are deprived of legal rights. A requirement to take a test is about as far from "content neutral" as you can get. And it is the very worst form of speech restriction, compelled speech.
The examination requirement is not only intended to compel speech on the test itself, it is also for both lawyers and tour guides intended to to influence the content of later speech. In both cases the requirement poses a prior restraint on speech: indeed more clearly so in the case of the legal licenses than in the case of tour guide licenses, as the tour guide licenses are required merely to combine speech with giving physical tours for money, whereas legal licenses are required for the speech itself. Legal speech is far more important to our political system than tour guide speech. Why not take the bull by the horns and challenge bar examinations which more clearly and thoroughly violate the First Amendment?
Here in AZ, the legislature disestablished the State Bar as a result of a conflict (in which I happen to think the legislature was in the right). Courts have created local rules requiring bar admission to file a pleading, but anything outside the courtroom is as unlicensed as walking a dog. Can't say this is without its harms (at least a couple of attys, disbarred for dishonesty, have hung out their shingle), but it's a (sorta) free country.
The question I always had about the bar is this. I can understand the bar exam, a test of basic competency. But if a person can pass that, why should their education matter? And why specifically should their education be required to be at an ABA approved school, when ABA is a purely private association, subject to no due process standards, and to which the vast majority of attorneys don't even belong?
Q for the lawyers: how big a deal is it to get jammed up for practicing without a law license? The reason I ask is that when growing up, one of our neighbors was busted for "practicing law without a license" (according to newspaper reports). Thereafter, I'd read another story in the paper, every 5 or 6 years or so (fresh out of the joint?), about the same gent engaging in the same activities. To my knowledge, he never possessed a license, and wasn't just practicing under a suspension or whatever. A couple of decades later, there was a story concerning his eldest son, who apparently took up the "family business". I'm pretty certain that Junior never attended law school--or even graduated college.
This was in New York, BTW.
California, otherwise one of the most heavily regulated states, has relatively permissive qualifications for the bar exam and bar admission. Non-ABA accredited law school study is permitted if students take a 1st year "baby bar" exam. Reading law under tutelage of a licensed attorney is permitted as well.
I'm not sure what has prevented the ABA from capturing CA bar requirements, but they've been that way a long time.
That's a pretty broad definition of content-based. As I understand it, a tourist guide is required to pass the test no matter what subject matters he or she includes in his or her tour. That looks a lot closer to content-neutrality to me.
Right, but what is a "tourist guide"?. Section 2e clearly specifies that it's the content of your speech that makes you subject to the licensing requirement.
"Any person ... who ... provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest."
If restricting who can provide information on a specific range of subjects is content-neutral, than anything is.
That's not really the definition of content neutrality. For instance, the statute in US v. O'Brien only applied to destruction of draft cards, but it was considered content neutral because it didn't reference the reason the draft card was destroyed.
Funny you should bring up this hypothetical. You are aware, aren't you, that when the Institute of Justice isn't challenging stupid regulations about licensing of tour guides, it's often challenging stupid regulations about licensing of barbers, hairdressers, etc.? Check this out, and scroll down to see how many cases involve hairbraiding.
Yeah, mostly hair-care stuff. I once got a bottle of hair dye from one of those places, that said right on the bottle it was illegal to sell to unlicensed me. Somehow I managed to successfully dye my own hair without hurting myself or damaging any property.
Dilan Esper: Sure, but applying that to this case is absurd. That's like saying a law prohibiting arguments in favor of abortion rights are content neutral because they don't depend on why you are making those arguments. Perhaps you want to show how weak they are.
There is simply no way to argue that "provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest" is content-neutral with a straight face. Geographical information is one particular type of content.
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