By Robert McNamara
The Institute for Justice’s litigation against unconstitutional speech-licensing laws rolled forward on September 16 when we filed a federal lawsuit against Washington, D.C., which, makes it a crime to describe things without a license.
As regular Liberty & Law readers know, IJ has long fought against so-called speech licensing: laws that violate individuals’ First Amendment rights in the guise of occupational licensing. Whether it is protecting people’s right to publish their opinions on commodities trading without first having to register with the government or defending the right of Philadelphia tour guides to tell stories for a living, IJ has been on the cutting edge of free-speech litigation.
In this latest effort, we have teamed up with D.C. tour guides Tonia Edwards and Bill Main, who run “Segs in the City” and provide fun-filled Segway-based tours of the city’s monuments and historic sights. Although the primary lure of “Segs in the City” is the opportunity to ride a Segway, a futuristic, self-propelled, personal transportation device, Bill and Tonia are knowledgeable guides who tell their tour groups stories about the city’s history and architecture. And because of this, D.C. authorities could throw them in jail for up to three months.
A D.C. law—very similar to a Philadelphia law IJ challenged in 2008—makes it illegal for anyone to work as a sightseeing guide without first obtaining a special government license. New regulations promulgated in July make clear exactly what the law is trying to ban, by specifically stating that no unlicensed person may “describe . . . any place or point of interest in the District to any person” on a tour. Unauthorized describers face fines and up to 90 days in jail.
The licensing process is expensive and time-consuming (rife with fees, forms and a written examination), but Bill and Tonia’s chief objection to the licensing program is one of principle: They believe that the government has no role in deciding who may (or may not) speak. Their customers can decide for themselves whether Bill and Tonia are worth listening to.
That is enough for Bill and Tonia’s customers, and that should be—must be—enough for D.C.’s city government as well. As the U.S. Supreme Court has repeatedly made clear, the First Amendment embraces a free marketplace of ideas. D.C.’s attempt to prevent guides like Bill and Tonia from bringing their ideas to market simply cannot stand.
Although IJ is arguing this case under the First Amendment to the Constitution, it is important to keep in mind that this law is just like the countless occupational-licensing requirements that IJ has challenged in the past: a barrier to entrepreneurship that does nothing at all to protect consumers. This case is simply an illustration of the expansiveness of mandatory occupational licensing. There is virtually nothing government thinks you should be able to do without its permission, not even describing things.
This case takes aim directly at that idea and advances the basic notion that everyone has the right to communicate for a living—whether they work as TV news reporters, tour guides or stand-up comedians—without first asking the government for permission. The First Amendment guarantees that right, and IJ will continue to protect it—in D.C., in Philadelphia and beyond.
Robert McNamara is an IJ staff attorney.