Tour Guides File Federal First Amendment Lawsuit

J. Justin Wilson
J. Justin Wilson · July 2, 2008

Arlington, Va—May the city of Philadelphia subject tour guides to hundreds of dollars in fines for engaging in unauthorized talking?

This is the question the Institute for Justice (IJ) seeks to answer in a federal lawsuit filed today, two days before Philadelphia celebrates the signing of the Declaration of Independence, in the Eastern District of Pennsylvania. The suit is brought on behalf of three Philadelphia tour guides—Mike Tait, Josh Silver and Ann Boulais—seeking to overturn a law enacted in April that will make it illegal for anyone like them to give a tour of much of the city’s downtown area without first passing a test and obtaining a government license—without, in essence, getting the government’s permission to speak. Effective in October, unlicensed tour guides can face fines of up to $300 per violation and have their businesses shut down.

“The government cannot be in the business of deciding who may speak and who may not,” said Robert McNamara, a staff attorney with the Institute for Justice, a national public interest law firm with a history of defending free speech and the rights of entrepreneurs. “The Constitution protects your right to communicate for a living, whether you are a journalist, a musician or a tour guide. It makes no more sense to let city officials decide who is allowed to talk about history than it would to let them decide who is allowed to talk about sports.”

The new law makes it illegal to give a tour for compensation of the city’s main tourist area without first submitting a written application, paying a fee, providing proof of insurance and passing a written examination in order to be granted a license to tour. The program will be administered and the test developed by an administrative agency to be named by the mayor’s office. No test has been made public.

The law is targeted at speech and applies only to someone who guides or directs people within the city or offers to do so while “provid[ing] information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest.” The program also discriminates against small or independent tour operators. The law gives the administrative agency complete discretion to exempt large operators—who would be better able to cope with the costs of regulation—from the testing requirements, provided the companies have training programs that are “equivalent.”

The irony of forbidding people to talk about Philadelphia’s history—including the history of the Framers’ enshrining fundamental American liberties in the Constitution—is not lost on Mike Tait, Josh Silver and Ann Boulais, three Philadelphians who make their living by telling visitors and natives about the history, culture and architecture of the place they love. Mike, Josh and Ann are serious about their city’s history—they share a deep commitment to accuracy as well as entertainment in their tours—and they are also serious about the liberties protected by the Constitution, which is why they joined together with the Institute for Justice to strike down the Philadelphia tour guide licensing scheme as a violation of their freedom of speech and right to earn an honest living.

“It is the right of every American to challenge laws that are unfair and wrong,” said Mike Tait. “As a matter of fact, that was fundamentally what the signing of the Declaration of Independence in Philadelphia—and the birth of our nation—was all about.”

“This unfortunate law is part of a nationwide explosion of occupational licensing that has occurred in recent decades,” said Institute for Justice President and General Counsel Chip Mellor. “The city’s decision to force tour guides to obtain government licenses before speaking is just another surprising example of government gone wrong and precisely the type of regulation the Institute was created to combat.”

Founded in 1991, the Virginia-based Institute for Justice has represented individuals nationwide who successfully defended their free speech rights and ability to earn an honest living in the occupations of their choice. These cases include the landmark legal battle to open the interstate shipment of wine, in which the U.S. Supreme Court struck down discriminatory state shipping laws that hampered small wineries as well as consumers. IJ also freed online advertisers from complying with California’s onerous real estate licensing regime and secured the first federal appeals court victory for economic liberty since the New Deal, this on behalf of casket retailers in Tennessee.