NOLA Tours - Background

Litigation Backgrounder

Talk of the Town:

Challenging New Orleans’ Tour-Guide Licensing Scheme

The Issue in a Nutshell

New Orleans has one of the most vibrant and interesting histories of any city in America. Yet it is a crime in the Crescent City to charge people for a tour and talk about that history without first getting permission from the government.

New Orleans requires every tour guide to pass a history exam, undergo a drug test and an FBI criminal background check every two years merely for speaking. People who give tours without a license face fines up to $300 per occurrence and five months in jail.

But under the First Amendment, the government cannot decide who may or may not speak. That is why four New Orleans tour guides have joined with the Institute for Justice in a federal lawsuit seeking to secure their free speech rights.

The New Orleans tour-guide licensing scheme is unconstitutional. Simply put, the government is not allowed to require people to get a license in order to talk. The speech of tour guides is no different than the speech of journalists, authors, musicians or other artists, and the government has no more right to regulate that speech under the First Amendment.

The tour guides’ lawsuit, filed on December 13, 2011, in the U.S. District Court for the Eastern District of Louisiana, 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 speak for a living—whether they speak as news reporters, stand-up comedians or tour guides.

 

Introduction

Journalists write for a living, singers sing and tour guides speak. All of these activities are protected by the First Amendment, which guarantees the right to free speech to everyone. In New Orleans, however, tour guides are being told that they cannot speak until they first obtain permission from the government. People who talk on tours without a license face five months in jail and $300 fines. Thus, for every historical tour, ghost tour or cemetery tour that a guide conducts, they must possess a government-issued license. To get that license, the guide must take a history exam, drug test and submit their fingerprints to the FBI.

No government in America would dream of imposing these kinds of restrictions on a journalist or musician, yet tour guides have come under increasing regulation in order to speak about the history and culture of their cities. Now, however, a group of four New Orleans tour guides is fighting back by filing a federal lawsuit stating that their First Amendment rights are being violated and asking a judge to declare the New Orleans licensing scheme unconstitutional.

New Orleans defines a “tour guide” as anyone who “conduct[s] one or more persons to any of the city’s points of interest and/or historic buildings, parks or sites, for the purpose of explaining, describing or generally relating the facts of importance thereto”.[1] This law applies to every kind of tour—including ghost tours, vampire tours and culinary tours.

In order to obtain a tour-guide license, an individual must pass—with a 70 percent score or higher—a written examination of “the applicant’s knowledge of the historical, cultural and sociological developments and points of interest of the city.”[2] The person may not have been convicted of a felony within five years of applying for a license. This license must be renewed every two years.[3] The fee is $50 for a license and $20 for renewal.

The city’s application materials further require an applicant to disclose his or her social security number, driver’s license number and proof of citizenship or authority to work in the United States. Applicants must pass a federal criminal background check and take a drug test. And they must do it when they renew their license every two years. Individuals who conduct tours without a license or with an expired license are subject to up to five months in jail, $300 fines and suspension or revocation of their tour-guide license.[4]

 

New Orleans Cannot Prohibit People from Talking About Its Sights and History

 

New Orleans has a rich history and culture. As a result, an industry has developed to take people on tours of the city, talk about its sights, inform and entertain. The First Amendment protects the tour-guide industry in its ability to communicate with interested individuals, just as it protects the many books and magazine articles written about New Orleans. Yet the city imposes a licensing regime on tour guides that it could never impose on writers.

By requiring people to obtain a license before they can describe the city’s points of interest, New Orleans has placed a content-based restriction on the speech of tour guides. Guides are free to walk around and talk about the weather, politics or the history of New York City, but they are not free to talk about the history of New Orleans.

The First Amendment does not allow the government to be the arbiter of truth. People pay to go on tours for all kinds of different reasons. Some want to learn, some want to hear stories and some just want to be entertained. New Orleans has no more right to determine the content of tour guides’ speech than it does to tell a newspaper what to publish. These kinds of content-based restrictions on speech are subject to the highest level of constitutional scrutiny, and are almost always found to be unconstitutional under the First Amendment.

The simple truth is that many 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. 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[5] to investment analysts[6] to commodities experts.[7]

Tour guides just talk to people. When someone pays to attend a tour, they are paying to hear the words that the tour guide speaks. Indeed, while guided tours may be livelier and more fun than their audio-tour competition, listening to a live tour guide is not fundamentally different than listening to an audio tour on a CD player or iPod, which can be sold without a license. Licensing tour guides is no more permissible under the First Amendment than requiring government approval for every New Orleans iPod tour or travel book would be.

It is simply not the role of government to decide who may talk about a city, its history or its culture. The First Amendment allows anyone and everyone to talk about New Orleans, including people who talk about the city to tourists for compensation.

 

The Plaintiffs

Guiding tours is an occupation 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.[8] By most estimates, New Orleans has nearly 500 individual tour guides. Four of those guides have joined together with the Institute for Justice to sue the City of New Orleans in a challenge to the city’s unconstitutional tour-guide licensing law.

Candance Kagan is a New Orleans native who gives tours for Friends of the Cabildo, a nonprofit group that works to preserve New Orleans history. Now retired, Candance typically gives two tours per day where she explains things like the significance of Jackson Square, the difference between Cajun and creole cuisine and the history of Café du Monde. Candance does not believe she should need the city’s permission to talk about these things. Indeed, she has been talking about them her whole life.

“Scary” Mary LaCoste, also retired, is famous for giving ghost tours of the French Quarter. As with Candance, giving tours is primarily a labor of love for Mary; nobody gets rich guiding tours. It is also, as she says, “a way to get my daily exercise.” Her tours may be lighthearted, but Mary is serious about standing up for her right to give them without taking a history test or being fingerprinted by the FBI every two years.

Joycelyn Cole is both a tour guide and a tour-company operator who owns Tour-New-Orleans.com. Joycelyn gives tours in the French Quarter and Garden District, cemetery tours and ghost tours. She is not challenging the city’s ability to license her business as a business, but, like the other clients, she does believe the First Amendment protects her right to speak about New Orleans without obtaining a tour-guide license.

Finally, Annette Watt works as a private contractor to a number of tour guide companies around town. Like the others, Annette believes that rather than regulating a harmless industry, the government should be getting out of the way of entrepreneurs who are contributing to the city’s rebirth after Hurricane Katrina.

 

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.[9] Today, that number exceeds 30 percent.[10] There are now more than 1,100 different occupations that require a government license in at least one state including such harmless occupations as “secretary” and “florist”.

Indeed, there is virtually nothing local or state governments believe you should be able to do without first asking their permission—including describing things to tourists. With surprisingly little public outcry, the power to decide who may pursue a particular occupation has slowly shifted from entrepreneurs and consumers to bureaucrats and industry insiders. This litigation, then, is about much more than historical or cemetery tours: It is about the basic American right to earn an honest living in the occupation of one’s choice—including the right to earn an honest living through talking—free from the arbitrary power of government.

Particularly as the nation tries to recover from a massive recession—and as individuals who have lost their jobs try to start over—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, Kagan v. City of New Orleans, on December 13, 2011. The lead attorney on this case is Institute for Justice Texas Chapter Executive Director Matt Miller. The Institute for Justice engages in cutting-edge litigation and advocacy nationwide to defend individual rights from overreaching government. Among IJ’s recent economic liberty cases are:

  • Louisiana CasketsIn August 2010, the Institute for Justice teamed up with the monks of Saint Joseph Abbey in a federal lawsuit challenging the constitutionality of Louisiana’s requirement that the monks be licensed as funeral directors and convert their monastery into a licensed funeral home in order to sell their handmade wooden caskets. The monks won in the trial court, prompting the state to appeal to the Fifth Circuit.
  • Edwards v. District of Columbia—In September 2010, the Institute for Justice challenged a tour guide licensing law in the District of Columbia. The case is currently awaiting a ruling in the trial court.
  • 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 case ended when the city agreed to abandon enforcement of the regulations.
  • 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.

 



[1] New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551. (emphasis added)

[2] Id. at § 30-1553.

[3] Id. at § 30-1554.

[4] New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-78, incorporating New Orleans Mun. Code Part II, Chap. 1, § 1.13.

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

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

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

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

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

[10] 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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