Robert McNamara · September 14, 2021

As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.

In 2014, the U.S. Court of Appeals struck down the District of Columbia’s licensing requirement for tour guides, handing a landmark free-speech victory to the Institute for Justice and its clients.  The decision marked a major victory for Bill Main and Tonia Edwards, the D.C. guides who’d fought for years to vindicate their First Amendment rights.  But the case also had sweeping consequences for both tour guides and other people who speak for a living nationwide.

For tour guides, the D.C. Circuit’s decision marked a sea change in how tour-guide regulation was treated.  Before the D.C. decision, no federal judge had ever struck down a tour-guide licensing scheme. Since that decision, no judge has upheld one.  Some cities, like Savannah, Georgia, or Charleston, South Carolina, have seen their tour-guide licenses struck down in federal court in response to an IJ lawsuit.  Others, like Williamsburg, Virginia, have voluntarily repealed their licensing laws rather than face litigation.  But the upshot of the decision has been clear: Every single federal judge to look at the question since Bill and Tonia’s victory has followed the D.C. Circuit’s reasoning, and the handful of guide-licensing requirements that remain on the books in other cities are on the thinnest of constitutional ice.

But the decision’s impact did not stop with tour guides.  To the contrary, the D.C. Circuit’s tour-guide decision has provided important protections for the right to speak for a living.  In 2014, the constitutional status of people who spoke for money was in flux—it was unclear whether the courts would accord full First Amendment protections to people whose occupation was speaking, even as the advent of the internet had made it so more and more of the population earned a living by selling their expertise, advice or skillful storytelling.  At the broadest level, the D.C. Circuit’s opinion presented a major initial victory for the forces of freedom by simply rejecting the idea that tour guides’ speech could be discounted simply because they spoke for a living.

That broad victory, though, is not the only thing the D.C. tour-guide opinion achieved.

As the debate about First Amendment protections has raged on, the D.C. Circuit’s opinion (and the opinions of the courts that have followed it) serve a subtler but equally important role in determining the scope of those protections.  Many First Amendment challenges to these sorts of restrictions on occupational speech are brought by people who already hold a government license, like doctors who want to be able to say particular things to their patients.  Those cases are important, but they also present a real danger that courts will set up a pernicious dichotomy in which the government would be prevented from restricting the speech of those who already have a license but would retain a free hand to silence those who do not have a license.  This would, of course, be backwards:  In this country, we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to speak in the first place.  The precedent established by the tour-guide cases early on in the fight over occupational speech has ensured that this vital principle has never been lost in the battles over speech by lawyers, doctors or healthcare facilities.

As with other tourist related businesses, the pandemic forced IJ’s clients Bill and Tonia Edwards to shut down their D.C. tour guide business, at least for the time being.  What will remain for the long-term, however, is the important legal precedent they set that protects the free speech rights of those who speak for a living.

Bob McNamara is an IJ senior attorney.

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