By Robert McNamara
One of the hallmarks of IJ’s success is our resilience and our never-wavering commitment to liberty. That resilience paid off in a big way in June with a resounding victory for occupational speech when the U.S. Court of Appeals for the D.C. Circuit unanimously struck down Washington, D.C.’s tour-guide licensing scheme. The court found that these rules—which literally make it illegal to describe things to paying tour groups without first passing a special multiple-choice test—violated the basic First Amendment right to talk for a living.
Readers of Liberty & Law may remember that we filed our first tour-guide suit in Philadelphia more than six years ago. In 2008, IJ challenged that city’s law making it illegal to give a tour of the city’s main tourist area without passing a history test. Soon after we filed the lawsuit, a federal judge blocked Philadelphia from enforcing its anti-speech law for six months; the city subsequently announced that it would not enforce its tour-guide law.
Seeking to build on that victory, we filed a similar challenge in 2010 in D.C. on behalf of Bill Main and Tonia Edwards, who own and operate ‘Segs in the City,’ a Segway-based tour company that provides guided tours of D.C.’s monuments, embassies and more. It has taken Bill and Tonia four years of slogging through the federal courts, with IJ’s litigators at their side, to finally get an appellate court decision.
It was worth the wait: “This case is about speech and whether the government’s regulations actually accomplish their intended purpose,” the opinion begins. “Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.”
The court also took a stand against unnecessary licensing in general, asking “Perhaps most fundamentally, what evidence suggests market forces are an inadequate defense to seedy, slothful tour guides? To state the obvious, Segs in the City, like any other company, already has strong incentives to provide a quality consumer experience—namely, the desire to stay in business and maximize a return on its capital investment.”
With this opinion, the court dealt a major blow to the forces of overregulation. For years, IJ has battled government licensing agencies that regulate all kinds of speech—from the advice of dieticians to the stories and folktales of tour guides—and in every case, government officials have argued that the First Amendment simply does not apply to occupational licensing. The D.C. Circuit—one of the most influential courts in the country—has now squarely faced that argument and named it for what it is: nonsense.
And that has to be correct. The First Amendment protects everyone’s right to talk for a living, whether they do so as a journalist, a stand-up comedian or a tour guide. 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, as the appellate court did here, to carefully examine evidence to make sure government is only exercising power within those limits.
Of course, the fight for occupational speech is not over—and it will not be over until we put government licensing boards out of the speech-squelching business once and for all. But this victory marks a major step forward in our efforts—one that was years in the making, but one that will continue to pay off for decades to come.
Robert McNamara is an IJ senior attorney.