Court strikes down tour guide license requirement

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A U.S. district judge has “reluctantly” struck down the city of Charleston’s licensing requirements for tour guides, ruling that the ordinance violates the First Amendment.

The Virginia-based advocacy group Institute for Justice filed a lawsuit in 2016 on behalf of three Charleston residents — Kimberly Billups, Michael Warfield and Michael Nolan — who either failed to become tour guides or whose tour guide business failed because of the city’s requirements.

“The First Amendment means we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to speak,” said Arif Panju, managing attorney of the Institute for Justice’s Texas office, in a statement. “Charleston’s tour guide license turned that principle backwards, but today’s ruling puts citizens, rather than city officials, back in charge of what they say and what they listen to.”

Judge David Norton heard oral arguments on the case in April at the J. Waties Waring Judicial Center. He noted the history of the building, and of the Four Corners of Law in downtown Charleston, in his ruling, saying the court “reluctantly strikes down the licensing law as unconstitutional.”

Charleston has had ordinances regulating the tourism industry in the city since 1983, as part of the city’s first tourism management plan. According to city ordinances, a person must pass a written examination and be licensed by the city’s Office of Tourism Management, which includes obtaining a business license, before being allowed to conduct tours. Guides must also retake the exam or take city-sanctioned continuing education courses every three years to maintain their license.

The exam is based on the Tour Guide Training Manual, a 480-page book put together by Historic Charleston Foundation.

Norton wrote in his opinion (.pdf) that the licensing law imposes “real burdens on those hoping to be tour guides in Charleston … a lucrative profession in a city where tourism is the most profitable industry.”

Norton added that Charleston has a “significant interest” in protecting its tourism industry and its visitors but that the licensing law is not narrow enough because the city did not try other less intrusive methods to prevent “unscrupulous” tour guides, such as voluntary certification and licensing programs akin to those that have been successful in Baltimore and Chicago.

“Unfortunately, the court is constrained by the current state of the law,” Norton wrote. “It has no choice but to strike the licensing law down as unconstitutional under the First Amendment.”

A footnote in the ruling added that the court questions whether paid tour guide speeches are the type of speech the First Amendment was intended to protect, saying it agrees with a previous Supreme Court ruling that the First Amendment was “meant for better things”

City spokesman Jack O’Toole said the city was disappointed with the ruling. He said that attorneys are currently reviewing legal options and that they expect to have recommendations for next steps this week.