DC Tours - Background

Litigation Backgrounder

License to Describe:

Challenging Washington D.C.’s Tour-Guide Licensing Scheme

The Issue in a Nutshell

In Washington, D.C., talking without a license can land you in jail for 90 days.

Tonia Edwards and Bill Main are lawbreakers.  Nearly every day, they teach a group of people how to ride Segways, and then take them around Washington, D.C., to talk about local sights and attractions.  Their business is located near the National Archives, so one of the things they tell their costumers is where the Bill of Rights is located.  For this, the city government could throw Tonia and Bill in prison for three months.  In Washington, D.C., it is illegal for anyone to give a tour of the city for compensation without first obtaining a special license—quite literally, a license to describe.

D.C.’s tour-guide licensing scheme is unconstitutional.  Simply put, the government is not allowed to require people to get a license in order to talk.  That is why Tonia and Bill have teamed up with the Institute for Justice to file a federal First Amendment challenge to the city’s tour-guide licensing scheme.  

Tonia and Bill’s lawsuit, filed on September 16, 2010 in the U.S. District Court for the District of Columbia, will vindicate their right to earn an honest living by speaking as well as establish a very simple and important legal principle:  The Constitution does not allow the government to be in the business of deciding who is—and who is not—allowed to speak about various topics.  

Vindicating this principle will help protect the rights of countless people across the country that communicate for a living—whether they do so as news reporters, stand-up comedians or tour guides.

 

Introduction

Together, Tonia Edwards and Bill Main run Segs in the City, which provides fun and informative Segway “safaris” in Annapolis, Baltimore and Washington, D.C. There is, however, a key difference between the three cities: In D.C., doing this makes them criminals. For more than six years, Bill and Tonia have introduced people to the joys of Segway riding and the sights of some of America’s most historic cities. Now, they are standing up for the First Amendment right to keep doing their job without obtaining a special government license to speak.

 

A License to Describe

In Washington, D.C., talking without a license can land you in jail for 90 days. The District makes it illegal for anyone to “guide or escort” anyone else for hire without first passing a test and obtaining a special license.[1] The city’s regulations make clear exactly what is forbidden: No one may “describe[], explain[], or lecture[] concerning any place or point of interest in the District to any person” in connection with any paid tour without first obtaining a special license.[2] The prohibition on unauthorized talking covers all of the public spaces in D.C.—including roads and sidewalks.[3]

In order to obtain a license to describe, a person must pay three separate fees—an application fee, a license fee, and an exam fee—totaling $200 and submit a time-consuming application.[4] Then, she must take and pass (with a score of at least 70 percent) the District’s “Professional Licensing Examination,” a test covering 14 different topics and information drawn from nine separate publications.[5]

The law is targeted at prohibiting speech—and only speech on particular topics. If, for example, a person hires a D.C. taxi for a sightseeing tour (at a cost of $25 per hour), and the driver talks about the prospects of the Washington Redskins, no law has been broken. But if, during that same ride, the driver says “Hey, that’s the Washington Monument,” the driver can be fined $300 or even thrown into jail for three months.[6]

In short, the District has claimed for itself the power to decide who is—and is not—allowed to talk about the city within its borders. But the United States Constitution allows no government to exercise that kind of power.

In forbidding unauthorized talking, the District places itself among a cadre of American cities that license tour guides. While many of our nation’s most famous tourist destinations like Boston and San Francisco manage to get by just fine by regulating people who talk about their city the same way they regulate people who write about their city (that is, not regulating them at all), a handful of cities like D.C., New York and New Orleans allow the police to crack down on people who talk about the town without permission. Philadelphia, Pa., attempted to join this censorious fraternity in 2008, but litigation by the Institute for Justice has so far prevented that city from implementing its tour-guide licensing regime.

The Institute for Justice’s litigation against speech licensing—in Philadelphia and Washington, D.C., alike—seeks to vindicate a basic First Amendment principle: the right to talk for a living free from government interference.

 

Government Cannot Be in the Business of Deciding Who May Speak and Who May Not

At the heart of the First Amendment is a simple principle: People are allowed to decide whom they want to listen to—the government cannot decide who is allowed to speak.[7] Similarly, the government cannot single out speech for special burdens on the basis of its content: Content-based restrictions like D.C.’s ban on describing “points of interest” are almost always unconstitutional.[8] D.C’s tour-guide licensing scheme—which seeks to prevent people from listening to the speakers of their choice on certain topics the government has deemed important—is blatantly unconstitutional.

The simple truth is that people nationwide earn their living by talking—whether they are broadcast journalists, stand-up comedians or tour guides—and the First Amendment protects their right to do so without a license. And where government has tried to punish people for the unauthorized dissemination of ideas, courts have consistently protected the right to speak freely in occupations ranging from fundraisers[9] to investment analysts[10] to commodities experts.[11]

The courts’ reaction to D.C.’s license to describe should be no different. It is an attempt by government to improve—by its own lights—the quality of public discourse, and to do so by silencing speakers of which it disapproves. That is not the role of government in a free society.[12]

Indeed, even if the government were allowed to be in the business of “improving” speech, using a single examination to license everyone who describes “points of interest” in D.C. creates an alarmingly overbroad criminal prohibition on speech.[13] Tour guides in the District offer ghost tours, food tours and even TV and movie tours. The idea that all of these people should be banned from speaking until they’ve passed a single test on a variety of unrelated topics is completely indefensible.

 

The Plaintiffs

No one gets rich by guiding people around Washington, D.C., or anywhere else—being a tour guide is, at heart, a labor of love. But it’s a labor of love pursued by tens of thousands of people nationwide: According to the Bureau of Labor Statistics’ Occupational Employment Statistics, more than 30,000 Americans earned their living as a tour guide in 2009.[14]

So it is with Tonia Edwards and Bill Main, owners and operators of Segs in the City. The entrepreneurial pair got their start in 2003 with an internet café and bicycle-rental shop in Annapolis, Md. The pair soon expanded their rental business to scooters and then, eventually, to Segways, the two-wheeled, self-balancing personal transportation vehicle. By the fall of 2004, though, the two had noticed a huge market opportunity: People loved riding Segways, and they responded even better to having a guide take them around a city on the futuristic devices. And so “Segs in the City” was born.

The business has succeeded beyond anyone’s wildest expectations. Today, during their busy season (Segs in the City shuts down once snow starts falling), Tonia and Bill’s small business operates up to five tours of D.C. a day, seven days a week. They still lead at least half the tours themselves, charming tourists with stories, jokes, and their hard-earned expertise. During the summers, about half the company’s tours are led by part-time employees, mostly college students on summer break.

To Tonia and Bill, most of the joy of a Segs in the City tour is seeing people learning to have fun on a Segway for the first time—whether they’re riding around the National Mall or zooming past the city’s historic embassies. While Segways can be a little intimidating from the outside—the battery-powered scooters are entirely self-propelled—they are remarkably easy to use, and it generally takes only a few minutes for guests to get comfortable gleefully rolling on their own. For Bill and Tonia, it is flabbergasting that they are criminals for describing things to people once the Segway tour begins.

To be clear, Tonia and Bill don’t object to regulation of their business for health or safety reasons—for example, in the District, people must be at least 16 years old to ride a Segway—and, when the National Park Service placed a moratorium on Segways on the National Mall itself, they obeyed that as well. (The moratorium, lifted in 2010, was in place while the NPS investigated whether Segways cause any harm to the turf—they don’t.) They object, however, to having to obtain a license just to describe things.

While free speech rights are important to most people, they are especially important to people who talk for a living. As immigrants—Tonia is a naturalized citizen, Bill a green-card holder—who earn their living by talking (and riding Segways) all over the eastern seaboard, the two are determined to establish once and for all that they are entitled to the same free speech rights that are enjoyed by the countless journalists, comedians, and writers who earn their living through their speech every day. 

 

The Explosion of Occupational Licensing

 

The United States is currently in the throes of an explosion of occupational licensing. In the 1950s, less than five percent of the workforce was required to obtain a government license to do their job.[15] Today, that number exceeds 30 percent.[16] As Suzanne Hoppough reports, there are now more than 1,100 different occupations that require a government license in at least one state (including such dangerous occupations as “secretary” and “florist”). This massive growth in occupational licensing has all too often gone entirely unremarked upon, and this silence has allowed private industry groups to push protectionist legislation with no discernible benefits to the public health or safety.

As D.C.’s tour-guide license illustrates, there is nearly nothing local or state governments believe you should be able to do without first asking their permission—including describe things. With surprisingly little public outcry, the power to decide who gets to pursue a particular occupation has slowly shifted from entrepreneurs and consumers to bureaucrats and industry insiders. This litigation, then, is about much more than Segways: It is about the basic American right to earn an honest living, including the right to earn an honest living through talking.

Particularly as the nation tries to recover from a massive recession—and as individuals who have lost their jobs try to start over, often by starting their own businesses—it is imperative that people be allowed to pursue their dreams without the government standing in their way imposing unnecessary barriers in the form of occupational-licensing requirements. Only by setting people free—to describe, to create, to work—can we truly create sustained economic growth.  

 

The Litigation Team

The Institute for Justice filed its complaint in this case, Edwards v. City of Washington, D.C., on September 16, 2010. The litigation team for the Institute for Justice in this case is IJ Staff Attorney Robert McNamara, along with Bert Gall, an IJ senior attorney.

As the nation’s leading libertarian public interest law firm, the Institute for Justice engages in cutting-edge litigation and advocacy nationwide to defend individual rights from overreaching government:

 

  • Tait v. City of Philadelphia—A law enacted in 2008 subjected Philadelphia tour guides to hundreds of dollars in fines for engaging in unauthorized talking. The Institute for Justice filed suit on behalf of three tour guides and secured a temporary injunction to prevent the city from enforcing the new ordinance. The case is currently on appeal.
  • Uqdah v. D.C. Board of Cosmetology—In 1993, an Institute for Justice lawsuit led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders. This case demonstrated that there is no one who is so removed from the need to earn money that economic liberty doesn’t matter to them.
  • Chauvin v. StrainIn July 2010, as a result of IJ’s civil rights lawsuit, the Louisiana legislature abolished the demonstration portion of the florist licensing exam, while leaving in place (for now) a short written exam that presents no serious obstacle to would-be florists. The bill passed both houses of the Louisiana legislature by wide margins.
  • LA CasketsIn August 2010, the Institute for Justice teamed up with the monks of the Saint Joseph Abbey in a federal lawsuit challenging the constitutionality of Louisiana’s requirement that the monks must be licensed as funeral directors and convert their monastery into a licensed funeral home in order to sell their handmade wooden caskets.
  • Swedenburg v. Kelly—The Institute for Justice struck a blow for economic liberty before the nation’s highest court on May 16, 2005, when the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers.
  • Zelman v. Simmons-HarrisOn June 27, 2002, the U.S. Supreme Court upheld the constitutionality of Cleveland’s school choice program in the most important education decision since Brown v. Board of Education. The court’s ruling removed the federal Constitution from the legal arsenal of teachers’ unions and other school choice opponents and opened the door to full vindication of Brown’s promise of equal educational opportunity for all.
  • Kelo v. City of New LondonIn 2005, the U.S. Supreme Court issued one of the most despised decisions in its history. In a controversial 5-4 opinion, the Court ruled against the Institute for Justice and its clients, deciding that eminent domain for private gain was constitutional, provided the new property owner promised to generate more tax revenue. The backlash to the decision was historic: 9 state high courts have limited their states eminent domain powers, 43 state legislatures have passed greater property rights protections, 44 eminent domain abuse projects have been defeated by grassroots activists, 88 percent of the public now believe that property rights are as important as free speech and freedom of religion.

 



[1] D.C. Code § 47-2836.

[4] See Application and Instructions Forms for Sightseeing Tour Guide in the District of Columbia, available at http://www.asisvcs.com/publications/pdf/680998.pdf.  

[5] Cf. Professional Licensing Examination Study Reference, available at http://www.asisvcs.com/publications/pdf/690906.pdf.  

[7] See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 908 (2010) (“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”).

[8] See, e.g., Carey v. Brown, 447 U.S. 455, 467-69 (1980).

[9] See Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 803 (1988) (Scalia, J., concurring).

[10] See Lowe v. S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring).

[11] See Taucher v. Born, 53 F. Supp. 2d 464, 477 (D.D.C. 1999).

[12] See Davis v. F.E.C., 128 S. Ct. 2759, 2774 n.8 (2008) (“[I]t would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech.”).

[13] See United States v. Stevens, 130 S. Ct. 1577, 1587 (2010).

[14] Data on file with the Institute for Justice.

[15] Morris M. Kleiner, Licensing occupations: Ensuring quality or restricting competition, at 1 (Kalamazoo, MI: Upjohn Institute, 2006).

[16] See Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market, NBER Working Paper Series #14979, available at http://www.nber.org/papers/w14979.


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