4th Circuit strikes down Charleston’s tour-guide licensing law

Charleston, S.C.’s tour-guide licensing law, which required would-be tour guides to pay a fee and pass a 200-question test, violates First Amendment free-speech rights, a federal appeals court has ruled.

The 4^th U.S. Circuit Court of Appeals determined in its June 11, 2020, decision in Billups v. City of Charleston that the ordinance was not narrowly tailored enough to satisfy constitutional review.

Charleston passed the ordinance in 1983 as part of a tourism-management plan. The ordinance provided that “no person shall act or offer to act as a tour guide in [Charleston] for hire unless he or she has first passed a written examination and is licensed by the city’s office of tourism management as a registered tour guide.” Failure to adhere to the ordinance could lead to a fine up to $500 and 30 days’ imprisonment.

Kimberly Billups, Michael Nolan, and Michael Warfield – prospective or current tour guides – challenged the constitutionality of the ordinance in federal court in January 2016. After a discovery phase, the district court held a bench trial and ruled the ordinance unconstitutional in April 2018.

The district court found that the city had a substantial interest in protecting its tourism industry, but that this ordinance was not narrowly drawn. The court noted that the city could have instituted a voluntary tour-guide certification program.

The city appealed to the 4^th Circuit, which affirmed the lower court. Like the district court, the 4^th Circuit held that the ordinance directly curtailed speech. This was a significant finding, as the city argued strenuously on appeal that the ordinance was merely a business regulation governing conduct that had only an incidental impact on speech.

“The Ordinance undoubtedly burdens protected speech, as it prohibits unlicensed tour guides from leading paid tours – in other words, speaking to visitors – on certain public sidewalks and streets,” the 4^th Circuit wrote.

The 4^th Circuit then applied intermediate, or mid-level, scrutiny to the law, as there was at least a cognizable argument that the ordinance was content-neutral, since it applied to all tour guides no matter the subject.

However, even under intermediate scrutiny, a law must be narrowly drawn so as not to prohibit too much speech. Though the city has a significant interest in protecting its tourism industry, it must do so through a narrow – as opposed to a broad – law.

The 4^th Circuit reasoned that the city had to show that before enacting its speech-affecting ordinance, it seriously undertook to consider less speech-restrictive alternatives, such as voluntary tour-guide certification.

“The City … has given short shrift to the idea of a voluntary tour guide certification program,” the 4^th Circuit wrote in concluding that the ordinance was simply too broad.

“In this country, we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to speak,” said Institute for Justice Senior Attorney Arif Panju in a news release. “Charleston’s law was unconstitutional because it got that important principle exactly backwards.”

David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).