License to Describe
Charleston’s city code makes it illegal to act as a tour guide for hire without first obtaining either a permanent or temporary tour-guide license.[i] The process to get either is strikingly onerous.
To get a permanent tour-guide license, a would-be guide must pass two different examinations. First, the city requires a written exam, which consists of 200 multiple-choice, matching, and true/false questions administered over the course of two hours.[ii] The exam questions themselves are drawn from the city’s “Tour Guide Training Manual”—a 490-page book that would-be guides are admonished to study in its entirety and that covers everything from architecture to colonial history to celebrity trivia.[iii] If an applicant achieves a score of 80 percent or higher on the written exam, they then must pass an oral exam, in which city officials grade them on their verbal descriptions and storytelling about randomly selected sites around Charleston.[iv] Only then, after proving their ability to both write and talk about the huge array of things Charleston officials deem important, can would-be tour guides tell the stories they want to tell.
But because the written and oral exams are only administered four times a year, Charleston’s law also allows would-be guides to obtain a temporary tour-guide license while they wait for the next licensing exam.[v] Temporary tour guide licenses are only available to people who are sponsored by an existing company.[vi] The city requires a separate written exam for the temporary license, and the city code also requires that the sponsoring employer provide it with a copy of the script the new guide plans to use, so it can be “approved for accuracy.”[vii] In other words, Charleston will let you be a tour guide without passing the permanent guide test—but only if it gets to approve what you say.
Charleston’s tour-guide license is being challenged by three would-be Charleston guides, all of whom have a deep passion for storytelling but all of whom have been shut out after failing to achieve an 80 percent on the November 2015 licensing exam.
Kim moved to Charleston with her husband and daughter in 2014 and quickly started putting together the pieces of a tour-guide business. Kim has many fond childhood memories of Charleston because of her deep family roots there. She turned her lifelong passion for history into a fun tourism business called Charleston Belle Tours, where Kim could give in-character tours of the major sites in the city in full period regalia. She spent countless hours studying for the tour-guide exam, poring over hundreds upon hundreds of flashcards and acing an online practice exam she found on her own. But when she went to sit for the exam in November, she was faced with an endless series of trivial questions that looked nothing like what she studied— including a question about the lead singer of 90s band Hootie and the Blowfish. Kim knew she did not pass the exam and left the exam room in tears. She was right and now has a stack of business cards, a credit-card-processing account and a replica period outfit all ready to go. She has, in fact, everything she needs to run her business—except the government’s permission to talk.
Mike spends many hours working as an unpaid volunteer at a local museum in Charleston’s historic district. Mike’s gregariousness and love of Charleston paid off when he was offered a job by a local tour company leading ghost and pub tours in the evenings. The only obstacle? Charleston’s tour-guide exam. Mike, an insurance broker by trade who passed his Series 7 certification examination[viii] on his first try, is no slouch as a test-taker. He took the test extremely seriously, reviewing the city’s manual in-depth and writing out historical facts and figures on a big board in his office. Mike took the exam in August 15, and despite all this effort, he scored a 73 percent and was forced to turn down his job offer. He redoubled his efforts and took the exam again in November 2015—this time scoring a 67 percent Fed up with the city’s endless series of trivial questions that had nothing to do with the ghost and pub tours he wants to lead, Mike is standing up for his First Amendment right to talk to paying customers without first getting the government’s permission.
Michael Nolan has spent his life telling stories. After years working as an editor in book publishing, he retired to Charleston with his wife in July 2015 and instantly fell in love with the city. Michael tried to become a licensed tour guide, combing his love of Charleston and love of telling engaging stories. He studied for six weeks, reviewing the manual and riding his bike all over town making sure he could match particular facts with specific buildings. Michael was confident he knew everything he needed to know to give a good tour of Charleston. And he still is: He knows everything he needs to know to give a good tour, but he still did not pass the tour-guide exam, an exam he found heavy on meaningless trivia and offensively light on important topics like slavery and the African-American experience in Charleston. Michael still loves this city and plans to tell its story to visitors, but he will do so because he has a right to say what he wants—not because the city has given him its permission.
Kim, Mike and Michael are all standing up to deliver a simple message to the city of Charleston: Any city that requires a 200-question test and an oral exam before citizens can legally tell stories to tour groups has already flunked every test under the First Amendment.
There is no tour-guide exception to the First Amendment.
Charleston’s law violates the U.S. Constitution. The freedom of speech protects everyone’s right to talk to a willing audience about whatever topic they choose without first getting the government’s permission—that is true for tour guides as it is journalists and comedians.
The government cannot attempt to protect the public from bad ideas or information, but that is exactly what Charleston is attempting to do. The city’s official tour-guide training manual is explicit on this point. The idea behind tour-guide licensing is “to provide accurate, factual, and updated information to its visitors and residents.” But if Charleston wants to get out a particular message about its history, it must hire its own tour guides. It cannot silence private citizens instead. Charleston has no business protecting its citizens from bad tour guides any more than it does protecting them from bad stand-up comedians. In each case, your best defense is the same: don’t listen to them.
Moreover, there is no reason to believe that forcing tour guides to take a standardized test before they talk does anything to improve the quality of the tour-guide experience. After all, there are thousands of stories about Charleston and it is impossible to boil them all down into one 200-question test. A test that is relevant to a tour about colonial history might not be helpful for a ghost tour or a pub tour or a slavery tour.
Perhaps that explains why only a tiny handful of American cities—including St. Augustine, Florida; New Orleans; New York City; and Williamsburg, Virginia—require a test before a would-be guide can tell stories to tourists. The vast majority of cities survive just fine without tour-guide tests, and there is no reason to believe Charleston cannot do the same. Indeed, in some cities, such as Philadelphia, private organizations provide voluntary tour-guide testing and certification. It allows knowledgeable guides to publicize themselves as certified tour guides without giving the government the power to fine or imprison people for unauthorized talking.[ix]
In short, Charleston’s tour-guide law imposes huge burdens on people who want to talk about the city, and it does so for no good reason. If the First Amendment means anything, it means that we rely on people to decide who they want to listen to rather than relying on the government to decide who will get to speak. Charleston’s law gets that important principle exactly backwards, and that is why it must be struck down.
The Explosion of Occupational Licensing
Charleston’s licensing requirements for tour guides illustrate that there is practically nothing local or state officials believe you should be able to do for a living without first getting their permission. While a “license to describe” seems (and is) outrageous, it is part and parcel of a broader explosion in occupational-licensing requirements. The Council of State Governments estimates that there are at least 1,100 different jobs that require a license in at least one state.[x] And the problem affects literally millions of people: Since the early 1950s, the percentage of the workforce that needs to have a government license in order to work has jumped five-fold, from about 5 percent to roughly 25 percent.[xi]
These licensing requirements impose serious costs on people who want to get into a regulated business, with many of those costs falling on people in low- or medium-wage jobs.[xii] For tour guides, as for countless other occupations that pose no threat to public health or safety, it is past time for government to simply get out of the way.
An Issue Headed for the Supreme Court
Charleston tour guides’ fight for their First Amendment rights comes as academics and even federal judges are in open disagreement how much protection the First Amendment gives to occupational speech—that is, how much protection it gives to people who talk for a living.[xiii] This dispute over the constitutional conflict between the states’ power to license occupations and individuals’ right to speak without a license will inevitably need to be resolved by the Supreme Court of the United States.
And much of that conflict is specifically about tour guides. In 2014, the U.S. Court of Appeals for the D.C. Circuit, in a case also brought by IJ, struck down similar tour guide licensing laws in the District of Columbia on the ground that they violate the First Amendment.[xiv] Among other things, that court relied on the fact that “scores” of cities have “determined licensing tour guides is not necessary,” on the “puzzling” application of licensing requirements to “specialty tour guides” such as “ghost, food or movie tours,” and on the conclusion that “market forces” and “consumer review websites” are more than adequate to protect consumers against the risk of bad tour guides—all things that are equally true in Charleston.
But in reaching that conclusion, the D.C. Circuit explicitly rejected an earlier decision in another IJ case from the 5th U.S. Circuit Court of Appeals, which had upheld New Orleans’s similar law with minimal discussion of the First Amendment.[xv] The D.C. court found that the 5th Circuit had failed to address significant legal issues and refused to follow its decision, creating a split of authority between the federal courts of appeal and teeing up this issue for eventual review by the U.S. Supreme Court.
The Litigation Team
The plaintiffs in this case are represented by Institute for Justice Attorney Arif Panju and IJ Senior Attorney Robert McNamara.
The Institute for Justice
The Institute for Justice is the national law firm for liberty. IJ is a public-interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government.
[i] Charleston Code of Ordinances § 29-58.
[v] Charleston Code of Ordinances § 29-60.
[vi] Charleston Code of Ordinances § 20-60(a)(1).
[vii] Charleston Code of Ordinances § 29-60(e).
[viii] The Series 7 is a six-hour examination for securities representatives administered by the federal Financial Industry Regulatory Authority. See generally Series 7—General Securities Representative Examination, available at http://www.finra.org/industry/series7.
[ix] See Association of Philadelphia Tour Guides, A Guide’s View of Philadelphia, available at http://www.phillyguides.org/Data/Sites/1/lecturebrochure2013.pdf.
[x] Brinegar, Pamela L. and Kara L. Schmitt. 1992. “State Occupational and Professional Licensure.” The Book of the States 567–80. Lexington, KY: Council of State Governments.
[xi] The White House, Occupational Licensing: A Framework for Policymakers at 17, available at https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf.
[xiii] Compare Paul Sherman, Occupational Speech and the First Amendment, 128 Harv. L. Rev. F. 183 (2015) with Amanda Shanor & Robert Post, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165 (2015).
[xiv] Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014).
[xv] Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014).