In Edwards v. District of Columbia, 755 F.3d 996 (2014), the Court of Appeals for the District of Columbia invalidated a regulation in the District requiring individuals conducting tours within the district to pay a $200 licensing fee and pass a 100-question multiple-choice exam about historical sites.
“Segs in the City “ owners Tonia Edwards and Bill Main, which had a business license to guide tourists through the District of Columbia, refused to comply and were fined. They challenged the fine, and applying intermediate scrutiny, the U.S. district court upheld their sentence. The appellate court found, however, that the regulations were “both incongruent as to any tour guide and overbroad.”
Appeals Court: History test for tour guides violates First Amendment
Writing on behalf of two other colleagues, Judge Janice Rogers Brown relied on the intermediate scrutiny test established in United States v. O’Brien (1968), the draft card-burning case.
It had established that such a governmental regulation was “constitutional if
- ‘it is within the constitutional power of the Government’;
- ‘it furthers an important or substantial governmental interest’;
- ‘the governmental interest is unrelated to the suppression of free expression’’ [and]
- ‘the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’”
Acknowledging that the district had the police power to enact licensing requirements, and that the requirements were content neutral (standards one and three), the court focused on prongs two and four and decided that the requirement was not narrowly tailored. Although the district had cited multiple concerns about guides to the city’s attractions, including the desire to weed out unknowledgeable or dangerous guides, Judge Brown found that its primary evidence that guides were untrained came from a newspaper article from 1927. It noted that the district only cited five other cities with similar regulations and that a decision that the city had cited upholding the Lobbying Disclosure Act of 1995 was largely inapplicable to this situation.
The judges further found that the city had not presented adequate evidence that the test being administered would address the city’s expressed concerns. Specifically referencing concerns about fraud, the court observed that there was no evidence that the test would “impart both knowledge and virtue.”
Judges thought customer reviews would weed out bad guides
Pointing to other anomalies in the law and quoting from the economist Adam Smith’s “Wealth of Nations,” the judges pointed to the incentive that guides and tour companies seeking future customers had to convey accurate information. They reasoned that reviews on websites like Yelp and TripAdvisor would likely weed out inept guides.
It found that the law was overly broad and did not utilize the least restrictive means needed to accomplish its objectives. It further suggested that the district might be able to accomplish a similar objective if it allowed guides to advertise that they had become certified by voluntarily taking and passing the prescribed city test.
At least one journal article, whose authors favored wider scope for the regulation of commercial speech than for political speech, has criticized the opinion as an unwise incursion into economic regulations (Post and Shanor, 2015).
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.