Last April we wrote briefly about a city ordinance requiring tour guides to take a test and obtain a license to ensure they were espousing accurate facts about the city and its history to tourists. It caused a lot of controversy—even drawing the attention of the Wall Street Journal. Why? Well, some tour guides felt that the law quieted their free speech rights. Tomorrow, at a courtroom in the United States Court of Appeals for the Third Circuit building in Old City, the two sides will argue the issue as put forth in Tait v. City of Philadelphia.

The case was dismissed in August, 2009 in an opinion you can read if you're really, really bored, a law student, or a lawyer. Basically, the court granted the City's motion to dismiss because they were persuaded by the City's argument that as they hadn't allocated the money required to enforce the law yet, there was nothing to litigate. The original action and the appeal commencing tomorrow were filed on behalf of several tour guides by the Institute for Justice's self-described "merry band of litigators." They contend that the licensing requirement is an unconstitutional repression of the free speech rights of tour guides.

The tours, they say, aren't lectures but forms of entertainment. Their job isn't to teach facts but to make sure visitors to our city have a great time. Also, the Institute argues that it is unjust for the City to hold the law over guides' heads, prolonging and exacerbating uncertainty about when the requirement will be enforced.

The City of Philadelphia, meanwhile, is protecting its tourism dollars in the wake of accusations that some tour guides are offering visitors erroneous or outright fictional information. They passed the law hoping to prevent those fictions from souring public opinion on the quality of Philadelphia's tourism industry. After all, who's going to recommend the city to friends if they find out that one factoid cited in the Wall Street Journal article, that Ben Franklin had 80 illegitimate children, is absolutely false?

The arguments on both sides are interesting, but it's important to point out that the law [PDF] requires licensing and imposes fines for violators, but doesn't expressly prohibit any speech. In other words, a tour guide who successfully completes certification one day and gives a tour the next day in which they tell their customers that the "Rocky" statue is the object of annual Martian religious festivals is not breaking the law. Is this nuance enough to quell First Amendment concerns?

We asked Robert McNamara, the Institute for Justice's lead attorney on the case, what he thought of the distinction. He said "the law doesn't directly control what licensed guides may say—instead, it controls who is allowed to speak. The point of our First Amendment claim—indeed, the point of the First Amendment—is that, in this country, we rely on people to decide whom they want to listen to; we don't rely on the government to decide who is allowed to speak."

It's an interesting point, and one not lost on us. After all, many certification requirements are imposed by independent governance bodies (think the American Bar Association's requirements for licensed attorneys), but the City of Philadelphia isn't an independent governance body—it's the Government, with a big G, and that's the basis of the Institute's argument.

McNamara continued, "Philadelphia's law turns that principle on its head, and it is unconstitutional for the same reason it would be unconstitutional for the city to make it illegal to be a journalist or a historian or a stand-up comedian without first getting permission from government officials." You can see a short YouTube video of McNamara discussing the case, including the delayed enforcement allocation issue, here.

Last year, the City rejected McNamara's suggestion that the licensing be voluntary, but we're not so sure that was such a good idea. A voluntary certification framework has the potential to make the question a market issue rather than a legal issue. If a tourist is walking down a Philadelphia street with their family and sees two tour guides, one prominently displaying a certification of the accuracy of their knowledge and the other apparently lacking any certification, at least some people will pick the vetted guide.

Right?

Filed in News and tagged Court, First Amendment, Law suits, Tourism

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