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169
“AND TO YOUR LEFT YOU’LL SEE . . .”: LICENSED TOUR
GUIDES, THE FIRST AMENDMENT, AND THE FREE MARKET
Kristin Tracy*
I. INTRODUCTION
If you are a beer-lover visiting Washington, D.C., you might want
to check out “DC Brew Tours,” a “beer tour company in the Capital
region that offers daily brewery tours to Washington’s best breweries,
brewpubs, and bars.”
1
As you would expect, the tour includes
samples of beer from a number of local craft breweries, as well as
information about how each beer is made.
2
What you might not
expect, however, is that, until very recently, DC Brew tour guides
were legally obligated to pass a written exam about the history of
D.C., a topic which has little to do with the art of brewing craft beer,
in order to obtain a license before providing any paid tours.
3
When you think about the First Amendment and about those
figures who helped challenge and shape First Amendment
jurisprudence throughout history, who do you think of? Young men
burning their draft cards,
4
newspapers challenging prior restraint,
5
students wearing armbands in protest,
6
and, of course, tour guides.
Yes, you read that correctly, tour guides. The freedom of speech is
“America’s favorite freedom,”
7
so when a law or a case erodes that
freedom, it is important to pay attention.
* J.D. Candidate, University of Baltimore School of Law, 2017.
1. DC Brew Tours, https://dcbrewtours.com/ (last visited Oct. 31, 2016).
2. Id.
3. See, e.g., D.C.
MUN. REGS. tit. 19, § 1200.1 (2010) (amended 2015) (defining a tour
guide, subject to the licensing requirements, as “any person who engages primarily
in the business of guiding or directing people to any place or point of interest in the
District . . . concerning any place or point of interest in the District”).
4. See generally United States v. O’Brien, 391 U.S. 367 (1968) (holding that a criminal
prohibition against burning a draft card did not violate the First Amendment’s
guarantee of free speech).
5. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 713 (1971); Near v. Minnesota
ex rel. Olson, 283 U.S. 697 (1931).
6. See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
(holding that a group of students wearing armbands in school to protest U.S.
involvement in Vietnam represented constitutionally protected symbolic speech).
7. Ken Paulson, America’s Favorite Freedom, F
IRST AMENDMENT CTR. (July 16, 2013),
http://www.firstamendmentcenter.org/americas-favorite-freedom.
170 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
It is probably fair to assume that most of the people reading this
Comment are not tour guides, but that does not mean that this issue
should be glanced over. The instant cases deal with tour guides,
8
but
the next plaintiff could be a journalist, a comedian, an author, or a
film-maker, because these cases are not just about tour guides, they
are about professional speakers.
9
This Comment analyzes the lack of necessity for, and therefore, the
unconstitutionality of, tour guide licensing through the lens of two
recent cases: Kagan v. City of New Orleans
10
and Edwards v. District
of Columbia.
11
The court in Edwards struck down the District of
Columbia’s licensing requirement as a violation of the First
Amendment,
12
whereas the Kagan court came to the opposite
conclusion.
13
Section II provides a foundation for understanding the
courts’ analyses of regulations affecting free speech, as well as the
factual and procedural backgrounds of the two cases.
14
Section III
asserts that the court in Edwards is correct—the licensing
requirements for tour guides do little to serve the government interest
of protecting the tourism industry, while another tool is much more
effective: the free market.
15
I will explain the basic economic
theories, which will then be applied to show how the tour guide
industry is more than capable of regulating itself.
16
Finally, Section
IV will discuss the unfortunate potential for further speech restriction
if the Kagan camp gains more support.
17
II. THE FIRST AMENDMENT AND THE CIRCUIT SPLIT
A number of controversial and groundbreaking claims have been
brought in the name of freedom of speech.
18
This can be largely
attributed to two factors. First, as mentioned above,
19
Americans
highly value the protections afforded by the First Amendment.
8. See infra Sections II.B, II.C.
9. Id.
10. Kagan v. City of New Orleans (Kagan II), 753 F.3d 560 (5th Cir. 2014).
11. Edwards v. District of Columbia (Edwards III), 755 F.3d 996 (D.C. Cir. 2014).
12. Id. at 998 (“Finding the record wholly devoid of evidence supporting the burdens the
challenged regulations impose on Appellants’ speech, we reverse and remand.”).
13. Kagan II, 753 F.3d at 562 (“The judgment of the district court upholding the
constitutionality of the New Orleans licensing scheme for tour guides is affirmed.”).
14. See infra Part II.
15. Edwards III, 755 F.3d at 1005 (“Even if we indulged the District's apparently active
imagination, the record is equally wanting of evidence the exam regulation actually
furthers the District's interest in preventing the stated harms.”).
16. See infra Part III.
17. See infra Part IV.
18. See, e.g., supra notes 4–6 and accompanying text.
19. See supra note 7 and accompanying text.
2016 “And to Your Left You’ll See . . .” 171
Second, those highly valued protections do not always have a clear
definition or application.
20
The First Amendment does not provide
an absolute freedom,
21
and courts have to determine when and where
to draw the line.
22
The two recent cases of focus here, Kagan and
Edwards, involve two courts looking at very similar facts, and
deciding to draw the line at different places.
23
One of those lines, if
left unchecked, threatens to infringe upon the rights of speakers
wherever a business relationship is involved.
24
A. Speech Restriction in General
The First Amendment provides that “Congress shall make no law
. . . abridging the freedom of speech.”
25
While the text of the First
Amendment only refers to Congress, the Supreme Court has deemed
that the protections apply to the governments of individual states, as
well.
26
Whether dealing with federal or state laws, the Supreme
Court has the daunting task of defining and categorizing different
types of speech,
27
and developing tests to determine when a speech
restriction does or does not violate the First Amendment.
28
For the purpose of analyzing Kagan
29
and Edwards,
30
it is
important to understand two categories of speech restrictions and
20. See discussion infra Section II.A.
21. See infra note 43 and accompanying text.
22. See infra note 26 and accompanying text.
23. See infra Sections II.B, II.C.
24. See infra Sections II.B, II.C
25. U.S.
CONST. amend. I.
26. See, e.g., Gitlow v. New York, 268 U.S. 652, 666 (1925) (“For present purposes we
may and do assume that freedom of speech and of the press—which are protected by
the First Amendment from abridgment by Congress—are among the fundamental
personal rights and ‘liberties’ protected by the due process clause of the Fourteenth
Amendment from impairment by the States.”).
27. See, e.g., id. at 664.
28. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 803 (1989) (finding a city’s
sound amplification guidelines to be valid as constitutional time, place, or manner
restrictions because the regulations were content-neutral, served an important
government interest, were narrowly tailored, and left open ample alternative means
for communicating the same message); Texas v. Johnson, 491 U.S. 397, 418 (1989)
(holding that burning the U.S. flag is a protected form of symbolic speech);
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (developing the “Clear and Present
Danger test” to determine whether or not the Constitution allows for restriction of
high-value political speech); United States v. O’Brien, 391 U.S. 367, 377 (1968)
(developing the four-prong “O’Brien test” to decide whether a content-neutral
regulation on expressive speech is constitutionally valid); Near v. Minnesota ex rel.
Olson, 283 U.S. 697, 722–23 (1931) (holding that prior restraints on speech are
unconstitutional).
29. Kagan II, 753 F.3d 560 (5th Cir. 2014).
172 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
their corresponding tests: certain restrictions on symbolic speech, and
time, place, or manner restrictions.
31
In United States v. O’Brien, the
Supreme Court created a four-prong test to determine the
constitutionality of content-neutral regulations of symbolic speech:
32
[A] government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it
furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to
the furtherance of that interest.
33
The Court explained in O’Brien that not every act is considered
protected speech, but that certain actions include “communicative
element[s]” important enough to “bring into play the First
Amendment.”
34
Prongs two and four of the test ask the court to
decide whether or not a regulation is sufficiently narrowly tailored to
serve a substantial government interest.
35
In doing this, the Court in
O’Brien questioned the existence of “alternative means that would
more precisely and narrowly assure” the achievement of the State’s
goal.
36
If such alternative means do exist, the regulation will fail.
37
Another category of speech restriction regulates the time, place, or
manner of speech.
38
The First Amendment protects the freedom of
speech, but this freedom is not absolute: “the First Amendment does
not guarantee the right to communicate one's views at all times and
30. Edwards III, 755 F.3d 996 (D.C. Cir. 2014).
31. Id. at 1009; Kagan II, 753 F.3d at 562.
32. O’Brien, 391 U.S. at 377. After burning his card outside of the South Boston
Courthouse, O’Brien was convicted under the Universal Military Training and
Services Act, which prohibited the destruction of a draft card. Id. at 369 (“[H]e had
burned his registration certificate because of his beliefs, knowing that he was
violating federal law.”).
33. Id. at 377.
34. Id. at 376.
35. Id. at 377; see also Edwards III, 755 F.3d at 1002 (“Collectively, prongs two and
four of the O’Brien test query whether the challenged regulations are narrowly
tailored to further a substantial government interest.”).
36. O’Brien, 391 U.S. at 381.
37. Id.
38. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 784 (1989) (challenging the
constitutionality of a city’s sound-amplification guidelines); Heffron v. Int’l Soc’y
for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981) (upholding a Minnesota
law prohibiting the distribution of literature at the State Fair except at designated
booths).
2016 “And to Your Left You’ll See . . .” 173
places or in any manner that may be desired.”
39
Like those speech
restrictions tested under O’Brien,
40
time, place, or manner regulations
must not be based on the content or subject-matter of the speech.
41
The restriction must also “serve a significant governmental
interest,”
42
must be narrowly tailored to serve that significant
interest,
43
and must leave open “alternative forums for the expression
of . . . protected speech.”
44
Although they have different names and seemingly different
requirements, the line separating the above-mentioned tests has been
somewhat blurred.
45
In Clark v. Community for Non-Violence, the
Supreme Court explained that:
[If a time, place, or manner restriction] sufficiently and
narrowly serves a substantial enough governmental interest
to escape First Amendment condemnation, it is untenable to
invalidate it under O'Brien on the ground that the
governmental interest is insufficient to warrant the intrusion
on First Amendment concerns or that there is an inadequate
nexus between the regulation and the interest sought to be
served. We note that only recently, in a case dealing with
the regulation of signs, the Court framed the issue under
O'Brien and then based a crucial part of its analysis on the
time, place, or manner cases.
46
Essentially, time, place, or manner restrictions “must also satisfy the
O’Brien standard.”
47
The integration of these two speech regulation
tests
48
is exemplified in two recent cases dealing with the
constitutionality of licensing requirements for paid tour guides.
49
39. Heffron, 452 U.S. at 647 (citing Adderley v. Florida, 385 U.S. 39, 47–48 (1966)).
40. See supra notes 32–33 and accompanying text.
41. Heffron, 452 U.S. at 648 (citing Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S.
530, 536 (1980)).
42. Id. (quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Counsel, 425 U.S. 748,
771 (1976)).
43. Id. at 658 (citing Grayned v. City of Rockford, 408 U.S. 104, 116–17 (1972)).
44. Id. at 654.
45. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 n.8 (1984); see
also Angelica M. Sinopole, Comment, “No Saggy Pants”: A Review of the First
Amendment Issues Presented by the State’s Regulation of Fashion in Public Streets,
113 P
A. ST. L. REV. 329, 358 n.198 (2008).
46. Clark, 468 U.S. at 298 n.8 (citing City Council of L.A. v. Taxpayers for Vincent,
466 U.S. 789, 804–05, 808–10 (1984)).
47. Sinopole, supra note 45.
48. See, e.g., Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128
H
ARV. L. REV. F. 165, 174–75 (2015) (“[Edwards] instead employs an eccentric
174 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
B. Kagan v. City of New Orleans
50
In 2013, a group of New Orleans tour guides challenged their city’s
licensing requirement in the U.S. District Court for the Eastern
District of Louisiana.
51
These original plaintiffs (now appellants)
gave a variety of tours, ranging from historical, to ghost-themed, to
“gustatory or libationary.”
52
New Orleans City Code § 30-1551
required tour guides in the City to have a license,
53
§ 30-1553
required the license applicant to pass a written examination and to
have committed no felonies in the past five years,
54
and § 30-1557
codified the fifty dollar fee applicants must pay before obtaining a
license.
55
The city asserted that the license requirement ensured tour guides’
knowledge of New Orleans and protected tourists from criminals and
swindlers.
56
The tour guides argued that the City’s justifications
were “insufficient under the First Amendment,” and asked for a
form of ‘intermediate scrutiny’ fashioned by cobbling together elements of the
O’Brien test with criteria developed in the context of content-neutral ‘time, place and
manner’ regulations.”) (citation omitted).
49. There is an argument, and perhaps a better one, that the O’Brien test has no
applicability in the tour guide cases since O’Brien is applied to symbolic speech
restrictions. See supra notes 32–37 and accompanying text. If a tour guide’s speech
is viewed as strictly commercial speech (i.e., it has no symbolic or expressive
nature), then an analysis under O’Brien is improper. See, e.g., Post & Shanor, supra
note 48, at 165–66. But see Recent Case, First Amendment—Freedom of Speech—
D.C. Circuit Court Holds Unconstitutional District of Columbia’s Tour Guide
Licensing Regulation—Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir.
2014)., 128 H
ARV. L. REV. 777, 781 (2014) (“The Edwards court was correct to
recognize the constitutional interest at stake because the D.C. regulation necessarily
affected expressive speech.”). The bottom line is that it does not really matter which
test should have been applied. As explained above, there is a strong suggestion that
the end result is the same regardless of whether the O’Brien test or the time, place, or
manner test is applied. See supra notes 45–47 and accompanying text.
50. Kagan II, 753 F.3d 560 (5th Cir. 2014).
51. See generally Kagan v. City of New Orleans (Kagan I), 957 F. Supp. 2d 774 (E.D.
La. 2013) (holding the city’s licensing scheme for tour guides did not violate the
First Amendment).
52. Id. at 774.
53. N
EW ORLEANS, LA., CODE OF ORDINANCES § 30-1551 (2011) (“No person shall
conduct tours for hire in the parish who does not possess a tour guide license issued
by the department of safety and permits.”).
54. N
EW ORLEANS, LA., CODE OF ORDINANCES § 30-1553 (2011) (“The written
examination is designed to test the applicant’s knowledge of the historical, cultural
and sociological developments and points of interest in the city.”).
55. N
EW ORLEANS, LA., CODE OF ORDINANCES § 30-1557 (2011).
56. Kagan I, 957 F. Supp. 2d at 775–76. The court later explained, however, that “[a]
tour guide may say whatever he or she wishes about a site, or anything else for that
matter—the City does not regulate the content of tour guides’ speech.” Id. at 779.
These two statements are incompatible.
2016 “And to Your Left You’ll See . . .” 175
declaratory judgment and permanent injunction.
57
The district court
held that the challenged statutes were content-neutral and valid under
the O’Brien test,
58
in part reasoning that the “[p]laintiffs do not need
a license to speak and lead tours whenever, wherever, and containing
whatever they please, just so long as they do not charge for them.”
59
There was no serious doubt regarding the city’s police power, in this
situation, fulfilling the first prong of the test, since “[t]he City
unquestionably has the power to license businesses as part of its
police powers.”
60
On appeal, the Fifth Circuit upheld the lower court’s ruling in a
brief opinion.
61
The court emphasized the fact that the tour guides’
speech was not restricted at all once they obtained a license,
affirming the district court’s O’Brien analysis: that New Orleans’
regulation is sufficiently narrowly tailored.
62
Immediately following
this discussion, however, the Fifth Circuit went on to explain how
“instructive” the Supreme Court’s opinion in Ward v. Rock Against
Racism
63
was in this particular case:
64
There the government had regulated sound, and the Court
said that even with messages conveyed, the regulation is
content-neutral so long as the regulation is justified without
reference to content or speech. Because that regulation was
content-neutral and only reviewed with intermediate
scrutiny, it satisfied the requirement of narrow tailoring so
long as the . . . regulation promotes a substantial interest that
would be achieved less effectively absent the regulation.
65
The court’s reliance on this authority is notable because, as discussed
above,
66
the Ward case dealt with a time, place, or manner
57. Id. at 776.
58. Id. at 780–82.
59. Id. at 781–82 (citation omitted) (referring to a combination of the second and fourth
prongs of the O’Brien test—whether or not the regulation furthers a substantial
government interest, and whether or not the incidental restriction on alleged First
Amendment freedoms is essential to the furtherance of that interest).
60. Id. at 780.
61. Kagan II, 753 F.3d 560 (5th Cir. 2014).
62. Id. at 562 (“[T]he New Orleans law in its requirements for a license has no effect
whatsoever on the content of what tour guides say.”).
63. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
64. Kagan II, 753 F.3d at 562.
65. Id. (alteration in original) (citation omitted)
66. See supra note 38 and accompanying text.
176 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
restriction.
67
As previously explained, however, the Supreme Court
has asserted that the outcome may be the same no matter which test a
court uses (i.e., O’Brien or time, place, or manner).
68
Following the
district court’s ruling, the Supreme Court denied a petition for writ of
certiorari on February 23, 2015.
69
C. Edwards v. District of Columbia
70
Plaintiffs Tonia Edwards and Bill Main, owners of “Segs in the
City,” a tour-guide company operating in D.C., Baltimore, and
Annapolis, first challenged the constitutionality of the District’s
statutory licensing requirement in 2010.
71
Plaintiffs filed for a
preliminary injunction, while the District simultaneously filed a
motion to dismiss.
72
The U.S. District Court for the District of
Columbia denied both motions in 2011.
73
Both parties filed cross-
motions for summary judgment, and in 2013, the district court again
issued an opinion on the matter, this time finding for the District of
Columbia.
74
The challenged statute was strikingly similar to the New Orleans
statutes challenged in Kagan;
75
it required all paid tour guides to
obtain licenses from the District of Columbia for an annual fee of
twenty-eight dollars.
76
D.C. Municipal Regulations accompanied this
statute, and provided that a license applicant must “[n]ot have been
convicted of [certain specified felonies],”
77
and must “pass an
examination . . . covering the applicant’s knowledge of buildings and
points of historical and general interest in the District,”
78
among other
67. Ward, 491 U.S. at 791 (“Our cases make clear, however, that even in a public forum
the government may impose reasonable restrictions on the time, place, or manner of
protected speech . . . . ”).
68. See supra notes 45–47 and accompanying text.
69. Kagan II, 753 F.3d 560 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403 (2015).
70. Edwards III, 755 F.3d 996 (D.C. Cir. 2014).
71. Edwards v. District of Columbia (Edwards I), 765 F. Supp. 2d 3, 6–7 (D.D.C. 2011).
72. Id. at 6.
73. Id. The cases Edwards I and Edwards II were later consolidated, and Edwards I was
dismissed as moot by the D.C. Circuit Court, so I will be focusing more on the
opinions in Edwards II & III. See Edwards III, 755 F.3d at 1000 n.2.
74. Edwards v. District of Columbia (Edwards II), 943 F. Supp. 2d 109, 124–25 (D.D.C.
2013), rev’d, 755 F.3d 996 (D.C. Cir. 2014).
75. Compare id., with Kagan II, 753 F.3d 560, 561 (5th Cir. 2014).
76. D.C.
CODE § 47-2836(a) (2012).
77. D.C.
MUN. REGS. tit. 19, § 1203.1(c) (2015).
78. D.C.
MUN. REGS. tit. 19, § 1203.3 (2010) (repealed 2015). On top of the annual
licensing fee, this written examination cost $200 for first-time applicants. Edwards
II, 943 F. Supp. 2d at 114.
2016 “And to Your Left You’ll See . . .” 177
requirements.
79
Just like the plaintiffs in Kagan,
80
the plaintiffs in
Edwards claimed that requiring a paid tour guide to first obtain a
license is a violation of the Free Speech Clause of the First
Amendment.
81
The court applied the O’Brien test
82
and found for the
city, granting its motion for summary judgment.
83
Of particular
importance is the district court’s analysis of the fit of the
regulations,
84
where the court determined that “[t]he tour guide
licensing provisions do not burden substantially more expression than
is necessary to meet the District's regulatory goals.”
85
Kagan and Edwards diverged once Edwards reached the D.C.
Circuit Court.
86
Again, there was no debate as to whether or not the
regulation “is within the constitutional power of the Government.”
87
The disagreement derived from prongs two and four of the O’Brien
test.
88
While the Fifth Circuit pointed to the lack of regulation or
control of tour guides’ speech once they obtained a license as proof
of the regulation’s appropriate fit,
89
the D.C. court came to the
opposite conclusion, stating that “a regulation cannot be sustained ‘if
there is little chance that the restriction will advance the State’s
goal.’”
90
The court went further, and asked: “Exactly how does a
tour guide with carte blanche to—Heaven forfend—call the White
House the Washington Monument further the District's interest in
ensuring a quality consumer experience?”
91
79. See generally D.C. MUN. REGS. tit. 19, §§ 1200–1209 (2010) (amended 2015)
(outlining the requirements for obtaining a tour guide license).
80. Kagan II, 753 F.3d at 561.
81. Edwards II, 943 F. Supp. 2d at 114–15.
82. Id. at 117, 121–24 (“The government has greater latitude to enact laws that only
incidentally restrict speech, and such laws are reviewed under an intermediate
scrutiny test.” (citing United States v. O’Brien, 391 U.S. 367, 376–77 (1968))).
83. Id. at 124–25.
84. O’Brien, 391 U.S. at 377; see also Edwards III, 755 F.3d 996, 1002 (D.C. Cir. 2014)
(“Collectively, prongs two and four of the O’Brien test query whether the challenged
regulations are narrowly tailored to further a substantial government interest.”).
85. Edwards II, 943 F. Supp. 2d at 124 (“The Court therefore concludes that the
regulations withstand intermediate scrutiny under the First Amendment.”).
86. See Edwards III, 755 F.3d at 1005–06, 1007 n.15.
87. Id. at 1002 (quoting O’Brien, 391 U.S. at 377).
88. Id.
89. Kagan II, 753 F.3d 560, 562 (5th Cir. 2014).
90. Edwards III, 755 F.3d at 1003 (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 566 (2001)). The State’s goal here is essentially the same as in Kagan, to
protect tourists and the tourism industry. Id.; Kagan II, 753 F.3d at 561.
91. Edwards III, 755 F.3d at 1005. The court also found “puzzling . . . the applicability
of the exam requirement to specialty tour guides, such as those focused on ghost,
food or movie tours,” since a general exam would be “ill-suited to ensuring such
178 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Beyond a discussion of the ill fit of the regulation regarding the
District’s interest in consumer protection and quality-control, the
Edwards court also discussed the lack of evidence of an actual need
to protect those stated interests.
92
Finally, and most importantly, the
court posed this question: “Perhaps most fundamentally, what
evidence suggests market forces are an inadequate defense to seedy,
slothful tour guides?”
93
III. MARKET FORCES ARE AN ADEQUATE DEFENSE
Can market forces provide an adequate defense to the problems
sought to be avoided in New Orleans and D.C. by requiring paid tour
guides to be licensed?
94
Yes. The licenses previously required in
D.C., and still required in New Orleans, are unnecessary to serve the
interests asserted by each city, and, therefore, are unconstitutional.
95
Neoclassical economic theory lays the foundation for answering this
question in the affirmative.
96
When applied to tour guides and other
members of the service industry, this theory demonstrates the
frivolity of the licensing schemes.
97
A prime illustration of
neoclassical economic mechanisms in the tour guide industry is the
potency of consumer-rating tools, such as Yelp and TripAdvisor.
98
The ideas discussed here are not limited to one industry; other
vocations may be subject to similar unnecessary licensing
requirements in the future if the reasoning in Kagan
99
is followed.
100
A. “It is not from the benevolence of the butcher, the brewer, or the
baker that we expect our dinner, but from their regard to their
own interest.”
101
This profound quote from Adam Smith’s text, The Wealth of
Nations,
102
illustrates the internal market forces that render tour guide
specialty guides are well informed.” Id. at 1005–06. There are similar specialty
guides in New Orleans. See Kagan I, 957 F. Supp. 2d 774, 775 (E.D. La. 2013).
92. Edwards III, 755 F.3d at 1003.
93. Id. at 1006–07. The court then used Yelp and TripAdvisor to illustrate the simple
but true aphorism: “[B]ad reviews are bad for business.” Id. at 1007.
94. Id. at 1006.
95. Id. at 1009.
96. See infra Section III.A.
97. See infra Section III.B.
98. See infra Section III.B.
99. See generally Kagan II, 753 F.3d 560 (5th Cir. 2014) (holding that New Orleans’
licensing requirements for tour guides do not violate the First Amendment).
100. See infra Section III.C.
101. A
DAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF
NATIONS 16 (MetaLibri Digital 2007) (1777),
http://www.ibiblio.org/ml/libri/s/SmithA_WealthNations_p.pdf.
2016 “And to Your Left You’ll See . . .” 179
licensing, at least in its current form, unnecessary. As one of the first
contributors to neoclassical economics,
103
it is only appropriate that
Smith’s words can best be explained through two of the basic
assumptions of this economic theory. The first assumption is that
“[p]eople have rational preferences . . . that can be identified and
associated with a value.”
104
The second is that individuals will act to
maximize their own utility, and firms, or businesses, will act to
maximize their profits.
105
Combining the above two facets of neoclassical economics brings
us to the conclusion that a consumer’s rational, utility-maximizing
decision to do business only with those firms that have good
reputations among other consumers
106
will act as a monumental
incentive to firms to act in a way that will attract those consumers.
107
This incentive is, in part, what Adam Smith was referring to when he
explained the self-interest of the “butcher, the brewer, . . . [and] the
baker.”
108
There are, of course, a number of critiques of this school of
thought. One central criticism is that the assumption of rationality is
an oversimplification of human behavior, since “[e]conomic agents
. . . have social, religious, and politico-ideological dimensions,” and
are “also constrained by the forces of habit, routine and well-
entrenched conventions.”
109
Another major criticism is that the
102. Id.
103. R
ICHARD D. WOLFF & STEPHEN A. RESNICK, ECONOMICS: MARXIAN VERSUS
NEOCLASSICAL 10 (1987).
104. Neoclassical Economics, N
EW WORLD ENCYCLOPEDIA,
http://www.newworldencyclopedia.org/entry/Neoclassical_economics (last visited
Oct. 31, 2016); see also W
OLFF & RESNICK, supra note 103, at 7 (“[Neoclassical
economic theory] assumes that all goods and services are privately owned by
individuals and that all individuals seek to maximize their satisfaction from
consuming goods and services. Neoclassical economists proceed to analyze what
such rationally motivated individuals will do with their property as they maximize
their satisfaction.”).
105. Id.; see also David Dequech, Neoclassical, Mainstream, Orthodox, and Heterodox
Economics, 30 J.
POST KEYNESIAN ECON. 279, 280 (2008) (“[N]eoclassical
economics is characterized by . . . the emphasis on rationality and the use of utility
maximization as the criterion of rationality . . . .”); Herbert A. Simon, Theories of
Decision-Making in Economics and Behavioral Science, 49 A
M. ECON. REV. 253,
256 (1959).
106. I.e., those firms that are most likely to actually maximize the consumer’s utility.
107. I.e., not be “seedy, slothful tour guides.” Edwards III, 755 F.3d 996, 1006 (D.C. Cir.
2014).
108. S
MITH, supra note 101 and accompanying text.
109. Hamid Hosseini, The Archaic, the Obsolete and the Mythical in Neoclassical
Economics, 49 A
M. J. ECON. & SOC. 81, 84–85 (1990); see also D.M. Nachane, The
Unity of Science Principle and the ‘Unreasonable Effectiveness’ of Neoclassical
180 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
notion of rational decision-making to maximize utility or profits
requires “perfect knowledge,”
110
which often does not exist in
reality.
111
These criticisms, however, are largely inapplicable to the analysis
presented below.
112
There is little chance of a consumer behaving
irrationally based on habit or routine when seeking a tour guide
because it is not likely that the same consumer is going on the same
vacation and the same tour repeatedly.
113
Furthermore, while perfect
information may not be available to all consumers, the internet
114
or
even a travel agent can provide consumer reviews and feedback,
which will likely help the consumer make rational decisions.
115
B. Market Forces: The Tour Guide Industry
Imagine what would happen if tour guides were not required to
pass written exams and obtain licenses. Would swindling tour guides
run rampant, misinforming tourists and cheating them of their
money? No.
116
It is an unavoidable fact of life that there will always
be dishonest businessmen and women, but it is also a fact that an
Economics, 43 ECON. & POL. WKLY. 79, 82 (2008) (discussing the Keynesian
critique and citing Keynes himself as describing the “rationality postulate” as “a
pretty polite technique” attempting “to deal with the present by distracting from the
fact that we know very little about the future”).
110. Neoclassical economic theory assumes that economic agents—producers and
consumers—have perfect knowledge, meaning they are “so keenly on the alert and
so well acquainted with one another’s affairs that” there is a clear rational decision
for each transaction. Hosseini, supra note 109, at 83 (emphasis omitted) (quoting
A
LFRED MARSHALL, PRINCIPLES OF ECONOMICS 112 (8th ed. 1984)).
111. See, e.g., Hosseini, supra note 109, at 85 (“George Shackle and Ludwig Lackmann
have long maintained that perfect knowledge is impossible; whereas without it
rationality and optimizing behavior become impossible.”).
112. See infra Section III.B.
113. See, e.g., Ana María Campón et al., Loyalty Measurement in Tourism: A Theoretical
Reflection, in Q
UANTITATIVE METHODS IN TOURISM ECONOMICS 13–14 (Á. Matias et
al. eds., 2013) (“With regard to the tourism sector, Bigné et al. (2005) hold that it is
difficult to measure loyalty on the basis of repeat purchases because consumption is
infrequent and customers may prefer to visit new places.”).
114. Before the advent of consumer-rating websites, and before the widespread
accessibility of the Internet, there was probably a better argument for the necessity of
licensing schemes for tour guides since consumer opinions would be passed along
very slowly, if at all.
115. See Alex Tabarrok & Tyler Crowen, The End of Asymmetric Information, C
ATO
UNBOUND (Apr. 6, 2015), http://www.cato-unbound.org/issues/april-2015/end-
asymmetric-information (“Technological developments are giving everyone who
wants it access to the very best information when it comes to product quality, worker
performance, . . . [and] many other areas. These developments will have
implications for how markets work, how much consumers benefit, and also
economic policy and the law.”).
116. See, e.g., Edwards III, 755 F.3d 996, 1003–04 (D.C. Cir. 2014).
2016 “And to Your Left You’ll See . . .” 181
overwhelming majority of cities and states in the United States do not
require tour guides to pass an exam and acquire a license before
conducting business.
117
When the D.C. Circuit Court wrote its
opinion in 2014, the court identified only four cities other than New
Orleans and D.C. that also required licenses for tour guides.
118
According to The Institute for Justice, one of those four cities—
Savannah, Georgia—has since decided to “abandon their licensing
laws rather than defend them in court,”
119
seemingly following in
Philadelphia’s footsteps.
120
If only a “handful of cities . . . require[] tour guide licenses,”
121
then it logically follows that most cities in the United States do not.
122
This statement may seem redundant, but it must be emphasized
because the Fifth Circuit would lead you to believe that tourists in
these unregulated cities are at great risk of being “scammed or put in
117. See, e.g., id. at 1004 n.5.
Although the District’s brief identified five cities with tour-guide
licensing requirements—Charleston, SC; New Orleans, LA; New
York, NY; Savannah, GA; and Philadelphia, PA—Philadelphia
appears to have abandoned (at least for the time being) any
intention of enforcing its law. The actual fifth city, Williamsburg,
Virginia, came to the court’s attention as a result of Appellants’
candor and due diligence.
Id. (citations omitted).
118. Id.
119. Robert Everett Johnson, Counterpoint: Tour Guide Licensing is Unconstitutional,
S
T. AUGUSTINE RECORD (Nov. 1, 2015, 12:05 AM),
http://staugustine.com/opinions/2015-10-31/counterpoint-tour-guide-licensing-
unconstitutional.
120. Edwards III, 755 F.3d at 1004 n.5 (“Philadelphia appears to have abandoned (at least
for the time being) any intention of enforcing its law.”); see also Tait v. City of
Philadelphia, 410 F. App’x 506, 509 (3d Cir. 2011).
The District Court held that the City's claimed inability to enforce
the Ordinance at this time is equivalent to a promise not to enforce
the Ordinance, and at oral argument the City went further and
stated that it ‘disavowed’ enforcement of the Ordinance until it
announces that a written test will be administered.
Id.
121. Tim Krepp, Tour Guide Licenses Unconstitutional? Maybe!, DC
LIKE A LOCAL
(Sept. 16, 2010, 1:39 PM), http://dclikealocal.com/dclikealocal/2010/9/16/tour-
guide-licenses-unconstitutional-maybe.html.
122. See, e.g., S.F. Tour Guide Guild, How to Become a Tour Guide,
http://www.sftgg.org/docs/how-to-become-a-tour-guide.pdf (last visited Oct. 31,
2016) (“To be a tour guide in San Francisco you don’t need a license or certification
. . . .”); World Fed’n Tourist Guide Ass’ns, Chicago (and the surrounding
suburbs), http://www.wftga.org/guideapedia/united-states-america/chicago-and-
surrounding-suburbs (last visited Oct. 31, 2016) (“The City of Chicago does not
license tour guides . . . .”).
182 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
danger by their tour guides.”
123
The mere rarity of license
requirements for tour guides does not itself prove that licensing is
unnecessary and unconstitutional.
124
The fact that the government
interest may be achieved through other means does not invalidate a
regulation, but, as the court in Kagan explained, a regulation is not
sufficiently narrowly-tailored if the substantial interest could be
served just as effectively without the regulation.
125
The large number
of cities without licensing requirements serves as undeniable
evidence that market forces are just as effective as the controversial
licenses, if not more so.
126
As the Kagan court touted, New Orleans tour guides suffer no
speech restrictions once they are licensed; they are free to say
whatever they wish about the city.
127
What, then, prevents a tour
guide from pointing to Basin St. Station and calling it St. Louis
Cathedral?
128
The answer is simple, and it has nothing to do with
passing an exam, paying a fee, or carrying a license: self-interest.
Self-interest is what keeps a tour guide from lying or guiding a tour
unprepared, because if a guide does this, it is inevitable that a tourist
will notice and decide to warn others of the unsatisfying
experience.
129
As rational economic agents seeking to maximize
their own utility,
130
the others will heed this warning and choose to
take their business elsewhere—a concept referred to as “dollar-
voting.”
131
The tour guide, or tour guide business-owner, is also a
123. Kagan I, 957 F. Supp. 2d 774, 779 (E.D. La. 2013).
124. See id. at 784.
125. Kagan II, 753 F.3d 560, 562 (5th Cir. 2014) (“[I]t satisfie[s] the requirement of
narrow tailoring so long as the . . . regulation promotes a substantial interest that
would be achieved less effectively absent the regulation.”) (citing Ward v. Rock
Against Racism, 491 U.S. 781, 799 (1989) (citation omitted)).
126. See supra notes 113–20 and accompanying text.
127. Kagan II, 753 F.3d at 562 (“[T]he New Orleans law in its requirements for a license
has no effect whatsoever on the content of what tour guides say.”).
128. Attractions, T
HE OFFICIAL TOURISM SITE OF THE CITY OF NEW ORLEANS,
http://www.neworleansonline.com/neworleans/attractions/attractions.php (last
visited Oct. 31, 2016).
129. See infra notes 134–36 and accompanying text.
130. See supra notes 104–05 and accompanying text.
131. Peter Lindsay, Exposing the Invisible Hand: The Roots of Laissez-Faire’s Hidden
Influence, 37 P
OLITY 295, 297 (2005).
Free markets, in turn, are valued on the assumption that they
allow scarce resources to be allocated in the absence of any public
sanctioning of what is and what is not a worthy economic activity
or good . . . emphasiz[ing] the efficiency of allocating resources
via an unencumbered pricing system in which individual
consumers direct production through chaotic, uncoordinated
“dollar-voting.”
2016 “And to Your Left You’ll See . . .” 183
rational decision-maker seeking to maximize profits, and will seek to
prevent this, or remedy the problem and gain back consumers’ trust
and patronage.
132
Evidence of the economic validity of this simple illustration can be
seen in consumer rating platforms, such as Yelp and TripAdvisor.
133
After going on Southern Hospitality Tours’ “Cocktail and Jazz” tour
in 2011, Yelp user Lauren M., from Arlington, Virginia, wrote a
review to express her dissatisfaction:
I wouldn't bother with the Cocktail and Jazz tour. The
drinks were nothing special and we only heard music at 2 of
5 venues. At two venues we didn't even go inside because
the places were too crowded so we drank our drinks on the
street. The tour guide did know his New Orleans history,
but I would recommend paying $20 for a carriage tour if
that is what you're looking for.
134
A few months later, Kim W., the owner of Southern Hospitality
Tours, replied:
Thank you for your response. We have significantly
changed the tour since you took it based on customer
feedback. All of our venues are now much bigger venues
and all feature live local music. The tour still includes
signature cocktails but you now have the choice of a beer or
well drink at the second and last venue with three signature
cocktails in between. We added a lot more history to the
tour and less walking as well and we can now spend more
time at each venue. The tour now ends on Bourbon St.
Thanks for your comment and helping us make this tour
better.
135
Id.
132. See supra notes 104–05 and accompanying text.
133. See, e.g., Y
ELP, www.yelp.com (last visited Oct. 31, 2016) (proclaiming itself as the
“best way to find great local businesses”); T
RIPADVISOR, www.tripadvisor.com (last
visited Oct. 31, 2016) (helping users “[b]ook your best trip, every trip”).
134. Lauren M., Southern Hospitality Tours, Y
ELP (Feb. 17, 2011),
http://www.yelp.com/biz/southern-hospitality-tours-new-orleans.
135. Kim W., Southern Hospitality Tours, Y
ELP (June 8, 2011),
http://www.yelp.com/biz/southern-hospitality-tours-new-orleans.
184 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
This is just one example, but similar interactions regarding different
tour guide companies can be found on Yelp and TripAdvisor.
136
Not
only do these reviews show the “expressed outrage and contempt that
would likely befall a less than scrupulous tour guide,”
137
they also
demonstrate the way in which tour guide companies respond: they try
to fix the problem for the future.
138
Many tour guide companies may be run by people who genuinely
care about tourists’ experiences, but this is not the only motivator for
responding to negative feedback.
139
Georgios Zervas and Michael
Luca conducted a Harvard Business study and found “that having an
extra star on Yelp causes the revenue of a business to rise by 5 to 10
percent.”
140
From this, we can logically conclude that having fewer
stars on Yelp causes less revenue, which would in turn cause the
rational, profit-maximizing business-owner to take action.
141
This is
a specific example of the general idea that, “[a] decline in brand
recognition or a blow to a corporation’s reputation affects a
corporation’s bottom line and can be as effective a threat . . . as any
government mandate.”
142
If market mechanisms are as effective as, if not more effective than,
the licensing regulations at issue in Kagan and Edwards, then those
regulations are not sufficiently narrowly tailored.
143
In this case, the
136. See, e.g., Wanda C., The Original Ghosts of Williamsburg Candlelight Tour,
T
RIPADVISOR (Oct. 31, 2015), http://www.tripadvisor.com/Attraction_Review-
g58313-d1122733-Reviews-
The_Original_Ghosts_of_Williamsburg_Candlelight_Tour-
Williamsburg_Virginia.html#REVIEWS. Wanda C. went on “The Original Ghosts
of Williamsburg Candlelight Tour” and expressed her dissatisfaction in a
TripAdvisor post, stating that she was “disappointed” and her family found the tour
to be “rather boring.” Id. In response to this, “angelaghost,” the manager, asked
Wanda to contact her through the company’s website so that they could “take steps
to fix this,” adding that the company “fell short, and that is unacceptable.” Id.
137. Edwards III, 755 F.3d 996, 1006–07 (D.C. Cir. 2014).
138. See id.; see also supra notes 103–05 and accompanying text.
139. See supra Section III.A.
140. Susan Seligson, Yelp Reviews: Can You Trust Them?, BU
TODAY (Nov. 4, 2013),
http://www.bu.edu/today/2013/yelp-reviews-can-you-trust-them; see also Sabah
Karimi, 5 Ways to Attract More 5-Star Reviews for Your Tour and Activity Business,
ZOZI (Aug. 31, 2015), https://www.zozi.com/advance/blog/5-ways-to-attract-more-
5-star-reviews-for-your-tour-and-activity-business (“70 percent of global consumers
say online reviews are the second most trusted form of advertising, with word-of-
mouth and recommendations from friends and family being the most trusted . . . .”).
141. See supra notes 104–05 and accompanying text.
142. Margaret Ryznar & Karen E. Woody, A Framework on Mandating Versus
Incentivizing Corporate Social Responsibility, 98 M
ARQ. L. REV. 1667, 1674 (2015)
(emphasis added).
143. See Kagan II, 753 F.3d 560, 562 (5th Cir. 2014).
2016 “And to Your Left You’ll See . . .” 185
threshold level of effectiveness is not very high to begin with.
144
As
both courts point out, once tour guides are licensed, they are free to
say whatever they wish.
145
It must be conceded that the licensing
scheme is effective in one area: criminal background checks.
146
This
does not, however, explain the necessity for written and oral exams
that sometimes contain little to no information that will actually be
used by the tour guide,
147
nor does it explain the need for a licensing
fee.
148
There is no necessity for them, and they have no effect on a
tour guide’s behavior or a consumer’s experience once the guide is
licensed, rendering them unconstitutional at the least.
149
C. Speakers Beware
The debate over requiring what is essentially a “license to speak” is
not only significant to tour guides: “[a]s we move from an industrial
to an informational economy, more and more and more Americans
will earn their livings in occupations that consist primarily in
speaking,” and “everyone who speaks for a living . . . from
comedians to consultants to interior designers
150
to therapists” will be
affected.
151
The same economic theories explained above
152
apply to these
professions as well, obviating the need for licenses as a means of
quality control.
153
Take, for example, the case of Janet Cooke, an
“ex-journalist.”
154
In 1980, Cooke wrote an article for The
Washington Post titled “Jimmy’s World,” a harrowing report about
an eight-year-old heroin addict.
155
Cooke was awarded the Pulitzer
144. See Edwards III, 755 F.3d 996, 1003 (D.C. Cir. 2014).
145. See, e.g., Kagan II, 753 F.3d at 562; Edwards III, 755 F.3d at 1005.
146. See, e.g., N
EW ORLEANS, LA. CODE OF ORDINANCES § 30-1553 (2011); D.C. MUN.
REGS. tit. 19, § 1203.1(c) (2010) (amended 2015).
147. Ghost or movie tours, for example. See Edwards III, 755 F.3d at 1005–06.
148. The fees do, however, raise revenue, which could explain the vehement argument for
their “necessity.” See supra note 146 and accompanying text.
149. See Edwards III, 755 F.3d at 1009.
150. See, e.g., Locke v. Shore, 682 F. Supp. 2d 1283 (N.D. Fla. 2010) (holding that state
license requirement for the practice of non-residential interior design is
constitutional and not even subject to First Amendment free speech scrutiny).
151. Evan Bernick, The Circuit Splits Are Out There—and the Court Should Resolve
Them, 16 E
NGAGE 36, 37 (2015) (footnote omitted).
152. See supra Sections III.A, III.B.
153. See supra Section III.A.
154. Janet Cooke, W
IKIPEDIA, https://en.wikipedia.org/wiki/Janet_Cooke (last visited Oct.
31, 2016). Cooke’s occupation is listed as “ex-journalist.” Id.
155. David A. Maraniss, Post Reporter’s Pulitzer Prize Is Withdrawn, W
ASH. POST, Apr.
16, 1981, at A1.
186 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Prize for her work;
156
the only problem was that she fabricated the
story.
157
After this fabrication was discovered, Cooke returned the
Pulitzer and resigned.
158
Cooke’s resignation was not due solely to
her own disgrace for what she had done;
159
consumers (i.e., readers)
relied on The Washington Post to maximize their utility, which in this
instance, meant to report the truth.
160
The Washington Post, in turn,
needed readers’ business to maximize their own profits.
161
Cooke
had to resign so the Post could regain credibility and remain
competitive in the market.
162
In 2013, the Discovery Channel aired a “documentary” entitled
“Megalodon: The Monster Shark Lives.”
163
This so-called
documentary “strung viewers along as it searched for a mythical
shark that went extinct millions of years ago.”
164
The next year,
Discovery aired “Megalodon: The New Evidence,” which provided
no actual evidence.
165
Viewers were disappointed, and vocalized that
disappointment.
166
For example, one viewer tweeted: “Dear
discovery channel, your fake documentary that you are trying to pass
off as reality is upsetting.”
167
In 2015, the head of development at
Discovery Channel stated that “Shark Week will be focused more on
science and research this time around,”
168
no doubt in an effort to
keep viewers happy, and, in turn, keep the channel’s “crown jewel”
profitable.
169
Another, more simplified illustration can be made of a stand-up
comedian who, like a tour guide, speaks for a living. If George Carlin
had not been funny, meaning he would not have been able to provide
consumers with a quality experience, then he would not have been
156. Id.
157. Id.
158. Id.
159. Id.
160. See supra notes 104–05 and accompanying text.
161. See supra notes 104–05 and accompanying text.
162. See supra notes 104–07 and accompanying text.
163. Adam Epstein, No More Megalodon: Discovery Channel Promises a More Scientific
“Shark Week” This Year, Q
UARTZ (July 6, 2015), http://qz.com/445516/no-more-
megalodon-discovery-channel-promises-a-more-scientific-shark-week-this-year/.
164. Id.
165. Id.
166. Breeanna Hare, Discovery Channel Defends Dramatized Shark Special
‘Megalodon,’ CNN (Aug. 9, 2013, 7:37 AM),
http://www.cnn.com/2013/08/07/showbiz/tv/discovery-shark-week-megalodon/.
167. Id.
168. Epstein, supra note 163.
169. Id.
2016 “And to Your Left You’ll See . . .” 187
able to maximize his profits.
170
He would have then had two choices:
get funnier, or find a new job. Licenses are not necessary to regulate
many professions; they regulate themselves.
171
The above examples may seem obvious, but that is the point.
Consumers react to unsatisfactory experiences and purchases because
they know that this will cause the producers in the market to react,
therefore lessening the likelihood of a repeat performance.
172
There
certainly are professions where licensing is appropriate and necessary
(e.g., medicine and law)
173
, but the line must be drawn somewhere,
and the Kagan decision is blurring an already wavering line.
174
For
example, in 2013, the Fourth Circuit upheld a licensing requirement
for fortune tellers against a First Amendment challenge.
175
The
Fourth Circuit applied one of the “least developed areas of First
Amendment doctrine,”
176
the professional speech doctrine,
177
to
determine whether or not the license requirement constituted a
violation of the plaintiff’s First Amendment rights.
178
The court
likened the licensing in question to the basic “regulatory
requirements . . . appli[cable] to law [and] medicine.”
179
There is a
clear logical disconnect between regulations in the legal and medical
professions and regulations in the fortune telling profession.
180
Moreover, the Fourth Circuit applied the professional speech doctrine
170. George Carlin was very funny. See Melissa Locker, 10 Genius George Carlin Jokes,
IFC (Sep. 19, 2013), http://www.ifc.com/2013/09/10-genius-george-carlin-jokes
(“When it comes to comedy, George Carlin sets the gold standard.”).
171. See infra note 203 and accompanying text.
172. See e.g., Epstein, supra note 163.
173. See, e.g., Medical Licensure, A
M. MED. ASS’N, http://www.ama-
assn.org/ama/pub/education-careers/becoming-physician/medical-licensure.page
(last visited Oct. 31, 2016); Bar Admissions Basic Overview, A
M. BAR ASS’N,
http://www.americanbar.org/groups/legal_education/resources/bar_admissions/basic
_overview.html (last visited Oct. 31, 2016).
174. See generally Kagan II, 753 F.3d 560 (5th Cir. 2014) (holding that New Orleans’
licensing requirements for tour guides do not violate the First Amendment).
175. Moore-King v. County of Chesterfield, 708 F.3d 560, 561 (4th Cir. 2013).
176. David T. Moldenhauer, Circular 230 Opinion Standards, Legal Ethics and First
Amendment Limitations on the Regulation of Professional Speech by Lawyers, 29
S
EATTLE U. L. Rev. 843, 843 (2006).
177. Nicole Brown Jones, Did Fortune Tellers See This Coming? Spiritual Counseling,
Professional Speech, and the First Amendment, 83 M
ISS. L.J. 639, 649 (2014)
(“[T]he professional speech doctrine has been applied when there is a ‘collision
between the power of government to license and regulate those who would pursue a
profession . . . and the rights of freedom of speech . . . .’”) (quoting Lowe v. SEC,
472 U.S. 181, 228 (1985) (White, J., concurring)).
178. Moore-King, 708 F.3d at 569–70.
179. Id. at 570.
180. Id.
188 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
after recognizing that “[a]spects of [the plaintiff’s] business are
clearly . . . for entertainment purposes.”
181
What does this mean,
then, for other entertainers, especially in light of the decision in
Kagan?
182
More recently, and more dauntingly, in January 2016, South
Carolina State Representative Mike Pitts introduced the “South
Carolina Responsible Journalism Registry Law.”
183
If the bill
becomes law:
[Any] person who in his professional capacity collects,
writes, or distributes news or other current information for a
media outlet, including an employee or an independent
contractor, that is not registered would be fined $25 to $500,
would be cited with a misdemeanor and could be
imprisoned up to 30 days, based on the level of offense.
184
Although many doubt this bill will ever come to fruition,
185
there is
still cause for concern, as this is not even the first attempt at statutory
journalism regulation in recent history,
186
and it likely will not be the
last.
187
In Kagan and Edwards, both courts recognized the
importance of integrity in the industry in question,
188
and it would be
difficult, if not impossible, to find someone who does not value
integrity in journalism. The same arguments that were made about
tour guides and the need to protect tourists can be made about
journalists and the need to protect subscribers and viewers, sending
First Amendment jurisprudence down a slippery slope.
189
181. Id. at 567 (emphasis added).
182. See Kagan II, 753 F.3d 560 (5th Cir. 2014) (holding the New Orleans licensing
requirement for tour guides did not violate tour guides’ First Amendment rights).
183. See Gavin Jackson & Schuyler Kropf, Republican Lawmaker Says Journalists
Should Face a Registry to Work in South Carolina, P
OST & COURIER (Jan. 19, 2016,
2:27 PM),
http://www.postandcourier.com/article/20160119/PC1603/160119305/republican-
lawmaker-says-journalists-should-face-a-registry-to-work-in-south-carolina.
184. Id.
185. Id. (“Charles Bierbauer . . . was one of several media representatives in the state who
said Pitts’ proposal had no chance of ever becoming reality.”).
186. Michigan Republican Senator Bruce Patterson introduced a similar bill in 2010,
although the registry in that case would have been voluntary. See Jana Winter,
Michigan Considers Law to Register Journalists, F
OX NEWS (May 28, 2010),
http://www.foxnews.com/us/2010/05/28/michigan-considers-law-license-
journalists.html.
187. See id.; see also Jackson & Kropf, supra note 183.
188. See supra Sections II.B, II.C.
189. Winter, supra note 186.
2016 “And to Your Left You’ll See . . .” 189
As consumers, we all want what we pay for: reliable information
about a new city, a spooky ghost tour, a comedic performance, an
education, a revealing documentary, reliable journalism.
190
As
journalists, tour guides, teachers, and speakers, we want the freedom
to express ourselves without first having to take an exam or join a
registry.
191
Luckily, market forces accommodate the wishes of
consumers and producers, thereby obviating the need for costly and
time-consuming government regulations that do much to restrict
freedom of expression, and little to advance any valid state goal.
192
IV. CONCLUSION
Unnecessary government regulations are frustrating no matter what
is being regulated. Requiring tour guides to be licensed is both an
unnecessary regulation and one that infringes upon citizens’ freedom
of speech.
193
Requiring someone to pay for and pass a written exam
about the history of the city in which they intend to work will not
ensure quality control in the tourism industry,
194
so it is a good thing
that market forces are able to pick up the slack.
195
Because businesses, such as tour guide companies, are motivated
by profit maximization,
196
and because consumers are motivated by
utility maximization,
197
quality control is almost a non-issue.
198
This
is especially true when rational consumers have access to ratings and
reviews through websites like Yelp and TripAdvisor.
199
Market
forces work in essentially the same manner in industries such as
entertainment and journalism, but the holding in Kagan poses a threat
to those industries as well.
200
An extension of regulatory schemes
like those seen in Edwards and Kagan
201
to other “professional
speaker” industries would be both wasteful and offensive to the First
Amendment.
202
190. See supra notes 106–08 and accompanying text.
191. See supra Section III.B.
192. See discussion supra Part III.
193. See supra Section II.C.
194. See supra notes 89–91 and accompanying text.
195. See supra Sections III.A, III.B.
196. See supra note 105 and accompanying text.
197. See supra notes 106–07 and accompanying text.
198. See supra note 153 and accompanying text.
199. See supra notes 131–39 and accompanying text.
200. See discussion supra Section III.C.
201. See supra Sections II.B, II.C.
202. See discussion supra Section III.C.
190 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Bill Main, owner of Segs in the City and original plaintiff in
Edwards, perfectly summarized the debate, and the reason for his
success in D.C., in four short sentences: “There is no need for these
regulations. We will regulate ourselves. We have competitors. They
will regulate themselves.”
203
203. The Heritage Foundation, D.C. Tour Guide Fights City Regulations, YOUTUBE (Oct.
6, 2015), https://www.youtube.com/watch?v=5hqnv4A9av4.
