Fighting for FREEDOM In the Constitution’s Birthplace

October 1, 2008

By Bob McNamara

As the birthplace of our Constitution and the city where the Declaration of Independence was signed, Philadelphia may be more central to the story of American liberty than any other place. There are countless stories to be told about the city’s history and culture.

And starting this fall, if the city government has its way, it will be illegal for anyone to tell any of those stories without first passing a government-administered test and obtaining a government-issued license. Under a new law, anyone caught giving an unlicensed tour of the city for compensation—telling people about, for example, the Liberty Bell—will be subject to a $300 fine.

It is a basic principle of American constitutional law that we rely on people to decide who they want to listen to, rather than rely on the government to decide who is allowed to speak. The city has decided to turn that principle on its head. Citing its own dissatisfaction with the current city tours—whose problems include, in the words of one city councilman, “making fun of some of our artwork”—the city has taken into its own hands the decision of who should (and should not) be allowed to talk to their fellow citizens about their shared history.

The irony of fining people for unauthorized speech in the very city where Congress sat when the First Amendment was ratified is not lost on Mike Tait, Ann Boulais and Josh Silver, three Philadelphia tour guides who joined forces with IJ this past July 4th week to file a federal lawsuit challenging the new tour-guide licensing scheme.

Mike, Josh and Ann are like a lot of the city’s guides. They are not in the business to get rich—tour guides do not earn very much money—but because they have a shared love of history and the story of the American founding. They are appalled that the city seems intent on trashing the very Constitution that makes Philadelphia’s history so important, and they are determined to stand up for their First Amendment rights.

Philadelphia’s law is just one more example of the explosion of government licensing that IJ combats (as documented in Lee McGrath’s “A Primer On Occupational Licensing” in this past April’s Liberty & Law) and a particularly outrageous example of how government increasingly uses the guise of “occupational licensing” as a way of clamping down on free speech. As IJ has documented in representing everything from for-sale-by-owner real estate websites to newsletter publishers, governments increasingly think they can use the words “occupational licensing” as a kind of magical incantation to make the First Amendment disappear. Our challenge to Philadelphia’s new law is one more step toward putting a permanent stop to that trend.

With a hearing scheduled in federal court October 6, IJ plans to make Philadelphia’s tour-guide licensing scheme history—just one more story to tell in a city that is full of tales about the fight for freedom. And Mike, Ann and Josh will be able to tell you all about it.

Bob McNamara is an Institute for Justice staff attorney.

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