July 21, 2020

IJ’s strategic approach to building precedent—and our resilience—paid off in a big way this June when the 4th U.S. Circuit Court of Appeals held that Charleston, South Carolina, violated the First Amendment by making it illegal to give paid tours of the city without obtaining a license to speak. This victory is the latest in our strategic campaign to change the way courts treat licensing requirements that tread on First Amendment rights.

Longtime readers of Liberty & Law may remember that IJ took up this case over four years ago on behalf of current and would-be tour guides Kim Billups, Mike Warfield, and Michael Nolan. We first prevailed in 2018, when a district court struck down the tour guide ordinance, which required passing a test based on the city’s 500-page manual full of facts city leaders deemed most important. Charleston appealed, but its rules failed again at the 4th Circuit—and victory was worth the wait.

The 4th Circuit, which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina, agreed with IJ on a host of issues we face in occupational speech litigation. The court held that the First Amendment applies in these cases, reaffirmed that its protections are not diminished simply because speech is paid for, and made clear that the government bears a real evidentiary burden to prove that its restrictions do not target speech as a first resort. The court also rejected the city’s attempt to satisfy its burden using bare assertions from city officials, telling the government it needs to present actual evidence.

The implications of this ruling go well beyond tour guides. The fact that the government labels a regulation “occupational licensing” does not cancel the protection of the First Amendment any more than it cancels the protection of any other part of the U.S. Constitution. All government power is limited by the Constitution, and courts have a duty to carefully examine evidence, as the appellate court did here, to make sure government is exercising power only within those limits.

In America, we rely on people to decide whom they want to listen to, rather than relying on the government to decide who gets to speak. Charleston’s law was unconstitutional because it got that important principle exactly backward.

The 4th Circuit’s decision is an important mark of progress in this area, as yet another federal appellate court has adopted IJ’s once-radical legal arguments. It also marks IJ’s third occupational speech victory before a federal appellate court just this year—with wins in the 9th Circuit on behalf of a farrier school and in the 5th Circuit on behalf of an innovative mapping startup (as described in the April issue of Liberty & Law). The decision is also more evidence that our strategic approach works. We do not just choose targets of opportunity; we must continue to file cases in sequence to maximize our ability to set important precedent and to ensure that we are able to protect our fundamental freedoms all across the country.

Of course, the fight for occupational speech is not over. But the 4th Circuit’s ruling marks a major step forward in our efforts—one that will continue to protect liberty for decades to come.

Arif Panju is managing attorney of IJ’s Texas office.

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