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A third U.S. court rules that tour guide licensing scheme is unconstitutional

Credit: City of Savannah

The license program for tour guides maintained by the city of Savannah is an unconstitutional violation of First Amendment free speech guarantees, a federal court in Georgia ruled May 20 (Freenor et al. v. Mayor and Alderman of the City of Savannah).

The U.S. District Court for the Southern District of Georgia ruled that the city did not provide adequate justification for its licensing scheme to overcome the presumption that its abridgement of free speech violates the First Amendment.

The suit was filed in 2014 by Michelle Freenor, a licensed tour guide in Savannah, joined by her husband who was not licensed because he did not want to take the exam required, and others.

To qualify as a “walking tour guide,” applicants were required to pay a fee, take a physical examination, pass a criminal background check, and pass a 100-multiple-choice-question examination on the history and architecture of the city.

The city actually repealed the licensing scheme in 2014, while the suit was proceeding, changing to a simple registration requirement with no fee. The city then argued that the repeal rendered the plaintiffs’ claim moot.

Normally, the court said, a repeal of an ordinance is an event that makes it absolutely clear that the allegedly wrongful behavior could not recur.

The Georgia ruling is the third by a federal court against municipal tour-guide licensing in cases filed by the advocacy group Institute of Justice. Washington, D.C. and Charleston, South Carolina had ordinances that were struck down, and in 2018 Williamsburg, Virginia, like Savannah, repealed a similar licensing requirement to avoid a lawsuit against it. In New Orleans, Louisiana, however, a federal court has upheld a similar licensing law.

In this case, the court chided the plaintiffs for their gambit—adding a claim for $10 in retrospective compensatory damages—to get around the fact that the case had already been decided and the issue was moot, saying, “It appears to this court that Plaintiffs are akin to litigants that seek a ‘psychic satisfaction’ that their cause is a worthy one.”

However, the strategy worked; the court found the charge that the licensing violated the First Amendment was not moot, giving the court jurisdiction to rule on the constitutionality issue.

Freenor argued that the city’s licensing scheme is a content-based regulation of speech that falls under a strict scrutiny standard of review. That requires a compelling government interest and a law that is narrowly crafted to achieve that interest.

The city of Savannah argued that the licensing scheme served two govern-mental interests: ensuring that guides “have the knowledge and proficiency to guide individuals who are visiting around our community,” and “are not criminals and could not potentially harm visitors or individuals who are taking a tour.”

The court accepted these interests but found that the city had not met the burden to show that the licensing rules served the interests. “The city fails to provide evidence that unknowledgeable guides are an issue for the city and pose a threat to the safety and enjoyment of tourists.”

The court also found the exam and the background check are not narrowly tailored to serve the government’s interest.

Such evidence could include studies or an expert opinion or evidence relied upon by other jurisdictions.

Some anecdotal evidence about the homeless population scamming tourists by pretending to be tour guides or selling spaces in public parking lots was submitted, but no evidence that the licensing would prevent scams.

A collection of news articles called “News Reports Regarding Problems with Unscrupulous Tour Guides in Tourist Destinations” was offered by the city but failed to impress the court.

“A handful of anecdotes is not sufficient to sustain the City’s burden to demonstrate that the tour guide licensing scheme actually serves its interests,” the court concluded.