So the Fourth Circuit held Thursday, in Billups v. City of Charleston, in an opinion by Judge Robert King, joined by Judges J. Harvie Wilkinson and Paul Niemeyer. Congratulations to Arif Panju of the Institute for Justice—a superb libertarian public interest law firm—on the victory, and belated congratulations to his IJ colleagues Paul Avelar and Keith Diggs on the victory the day before in the Ninth Circuit Pacific Coast Horseshoeing case. (Disclosure: My student Kelly Kambourelis and I had filed an amicus brief supporting this outcome, on behalf of the Cato Institute.)
[Under] Charleston’s Tour Guide Licensing Ordinance[,] … before leading a paid tour through Charleston’s historic districts, a prospective guide must obtain a license. And to obtain that license, a prospective guide must pass a 200-question written examination that focuses on Charleston’s history, architecture, and historic preservation efforts…. “Tour Guide” is defined as “any person who acts or offers to act as a guide for hire through any part of the districts, including but not limited to pedestrians and persons within automobiles, motor vehicles or horse-drawn vehicles when the primary purpose of riding in such vehicles is not transportation, but touring the historic areas of the city.” … “Tour” and “Touring” are defined as “the conducting of or the participation in sightseeing in the districts for hire or in combination with a request for donations” …. “Districts” are defined as “the old and historic district and the old city district.”
{The Ordinance’s examination requirement is unusual in that most other cities with tourism-based economies do not require that tour guides pass an exam to obtain a tour guide license. For example, Paula Reynolds, a tour guide organizer who has worked in over fifty jurisdictions around the United States, testified in the district court that only two other jurisdictions—New Orleans, Louisiana, and Williamsburg, Virginia—require that tour guides pass exams to obtain licenses. And after Reynolds offered that evidence, Williamsburg amended its tour guide licensing ordinance to remove the mandatory exam provision.} …
On appeal, the City contends that the district court committed two errors in declaring the Ordinance unconstitutional. First, the City maintains that the court wrongly concluded that the Ordinance burdens protected speech and is thus subject to First Amendment scrutiny. Second, the City asserts that even if the Ordinance is subject to First Amendment scrutiny, the court erred in determining that it does not survive intermediate scrutiny. As explained below, we reject both of the City’s contentions….
The court concluded that the Ordinance is a speech restriction:
The Ordinance undoubtedly burdens protected speech, as it prohibits unlicensed tour guides from leading paid tours—in other words, speaking to visitors—on certain public sidewalks and streets. See Sorrell v. IMS Health Inc. (2011) (“An individual’s right to speak is implicated when information he or she possesses is subjected to restraints on the way in which the information might be used or disseminated.”).
{[T]he business of leading tours depends on the expression of ideas. And the Ordinance forbids unlicensed tour guides for hire from expressing those ideas on public thoroughfares. Such a restriction burdens protected speech and thus implicates the First Amendment. Cf. Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton (2002) (explaining that “requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech” and effectively bans a “significant amount of spontaneous speech”).} …
The City, however, resists this rather straightforward conclusion for three reasons. First, the City asserts that the Ordinance cannot constitute a burden on protected speech because tour guides who do not charge for their services can give tours without a license. But the City’s profit-based distinction is quite beside the point, as speech is “protected even [when] it is carried in a form that is ‘sold’ for profit.” … “While the burdened speech results from an economic motive, so too does a great deal of vital expression.” See also Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin. (4th Cir. 1999) (explaining that “profit motive on the speaker’s part does not transform” protected noncommercial speech into less-protected commercial speech).
Second, the City maintains that the Ordinance is exempt from First Amendment scrutiny because it merely regulates the commercial transaction of selling tour guide services—not the speech of the tour guides. But it is well-established that a law aimed at regulating businesses can be subject to First Amendment scrutiny even though it does not directly regulate speech. See Holder v. Humanitarian Law Project (2010) (“The law here may be described as directed at conduct … but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.”).
To be sure, restrictions on “protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct.” And “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”
The Ordinance, however, cannot be classified as a restriction on economic activity that incidentally burdens speech. Rather, it completely prohibits unlicensed tour guides from leading visitors on paid tours—an activity which, by its very nature, depends upon speech or expressive conduct. Although we acknowledge that the City enacted the Ordinance to protect Charleston’s economic well-being and safeguard its tourism industry, that alone does not shield the Ordinance from First Amendment scrutiny.
Finally, the City relies on a rhetorical question in a decision from the Fifth Circuit to argue that the Ordinance does not burden protected speech. In that decision, which evaluated the constitutionality of New Orleans’s mandatory licensing scheme for tour guides, the Fifth Circuit remarked: “When a city exercising its police power has a law only to serve an important governmental purpose without affecting what people say as they act consistently with that purpose, how is there any claim to be made about speech being offended?” Immediately following that musing, however, the court proceeded to subject the New Orleans ordinance to First Amendment scrutiny. The Kagan decision thus does not support the City on the protected speech issue.
And the court then concluded that it didn’t need to reach the question whether (as our amicus brief had argued) the restriction was content-based, because it would be unconstitutional even if treated as content-neutral and thus subject to “intermediate scrutiny,” under which a restriction must be “narrowly tailored to serve a significant governmental interest, and [must] leave open ample alternative channels for communication of the information.”
The City bears the burden of proving that the Ordinance survives intermediate scrutiny….
[W]e are satisfied that the City has a significant interest in protecting Charleston’s tourism industry and visitors from harms perpetrated by unknowledgeable or fraudulent tour guides. We also readily conclude that the Ordinance serves—at least to some extent—the City’s interest in protecting Charleston’s tourism industry….
Our inquiry, however, does not end there, as the constitutionality of a law that restricts protected speech does not turn solely on the significance of the governmental interest involved. Rather, to zealously safeguard the right to free speech enshrined in our Constitution’s First Amendment—undoubtedly among the most fundamental of American rights—we must also ensure that the government’s chosen method for protecting its significant interests is not too broad….
In assessing whether the Ordinance is narrowly tailored to serve the City’s interest in protecting Charleston’s tourism industry, we consider whether the Ordinance “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” Of course, the Ordinance need not be “the least restrictive or least intrusive means of” serving the City’s interests, but the City may not “regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” …
To prove that a content-neutral restriction on protected speech is narrowly tailored to serve a significant governmental interest, the government must, [among other things], present evidence showing that—before enacting the speech-restricting law—it “seriously undertook to address the problem with less intrusive tools readily available to it.” In other words, the government is obliged to demonstrate that it actually tried or considered less-speech-restrictive alternatives and that such alternatives were inadequate to serve the government’s interest. The government’s burden in this regard is satisfied only when it presents “actual evidence supporting its assertion[s].” …
And the court (among other things) pointed to this alternative:
[T]he Plaintiffs propose [an] alternative—a voluntary tour guide certification program similar to those successfully used by other great American cities, including historic municipalities like Baltimore and Chicago. The Plaintiffs contend that the City should have seriously considered, before enacting the Ordinance, whether a voluntary certification program could be used in Charleston to regulate tour guides.
As the Plaintiffs emphasize on appeal, such a voluntary program provides tour guides with opportunities to “obtain a competitive advantage (and government recommendation) by passing a test and obtaining a credential.” And unlike the City’s existing deceptive solicitation and business licensing ordinances, a voluntary certification program speaks directly to the City’s interest in ensuring that tour guides have a base level of knowledge and competency. Under the voluntary certification program supported by the Plaintiffs, prospective tour guides who meet the certification requirements could advertise their tours as certified—for example, by wearing special insignia—and the City could compile a list of certified guides for distribution to visitors. In other words, such a voluntary certification program would protect the City’s tourism industry by encouraging visitors to patronize certified tour guides who satisfy standards established by the City—all without infringing the Plaintiffs’ free speech rights.
The City, on the other hand, has given short shrift to the idea of a voluntary tour guide certification program. Specifically, the City has failed to offer evidence demonstrating that it seriously considered a voluntary certification program before enacting the Ordinance—such as, evidence that it conducted cost-benefit analyses, sanctioned formal reports, held workshops with city leaders, or spoke with leaders of other cities that have successfully implemented such a program. Rather, the City relies on the testimony of [Daniel Riccio, the City’s Director of Livability] that a voluntary certification program “would be impractical,” and the testimony of [former Mayor Joseph Riley] that such a program would not have “the accuracy or the excellence or the quality” of the Ordinance’s mandatory certification program. That testimony, however, is simply not sufficient to satisfy the City’s burden, as it is merely post-hoc justification for why City officials believe a voluntary tour guide certification program would not adequately protect its interests. Without unnecessarily specifying the precise process a governmental entity should employ in considering less-speech-restrictive alternatives used by other jurisdictions, we confidently say that outright rejection on impracticality grounds—absent any serious consideration whatsoever—does not suffice.
At bottom, because the City failed to provide evidence that—before enacting the Ordinance—it attempted to use “less intrusive tools readily available to it” (the existing deceptive solicitation and business licensing ordinances) or that it ever seriously “considered different methods that other jurisdictions have found effective” (a voluntary tour guide certification program), we are satisfied that the City has not established that the Ordinance is narrowly tailored. We therefore conclude that the district court correctly declared the Ordinance unconstitutional, as it cannot survive intermediate scrutiny.
The same issue had been decided the same way as to D.C. in Edwards v. D.C. (D.C. Cir. 2014), but the opposite way as to New Orleans in Kagan v. City of New Orleans (5th Cir. 2014); though there is therefore a square split among the circuits both as to the result and the reasoning, the Supreme Court declined to review Kagan, and I expect it would likely decline to review Billups as well, even if Charleston petitions for certiorari.
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