Legal Briefs

Kagan v. City of New Orleans

By Ilya Shapiro, Eugene Volokh, and Gabriel Latner
December 22, 2014

The First Amendment protects the freedom of speech and of the press because the Framers wanted to prevent the creation in America of a license-based censorship. They were deeply opposed to Britain’s systematic restriction of speech, which treated the right to speak publicly as a privilege conditioned on an express grant of the sovereign’s permission. In order to publish books, newspapers, and pamphlets, or even to perform plays, a speaker had to obtain a permit. American law has firmly rejected this sort of “prior restraint” on speech. While licenses to engage in potentially dangerous activities like the practice of medicine — or even driving — are often necessary to prevent great harm, the value judgment represented by the First Amendment is that the harm a “license to speak” would do to individual liberty is far greater than any potential harm that could be caused by “unqualified” speakers. It is for this reason that authors, publishers, filmmakers, journalists, and talk-show hosts don’t need to pass a test or ask the government for permission before engaging in their vocation. Unfortunately, several municipalities seem to think that tour guides should be treated differently. Fearing the calamitous consequences of allowing “ignorant” guides to “mislead” tourists, these cities have instituted licensing regimes that make it a crime for tour guides to operate without a license — a license which can only be obtained by passing a test of history and culture.  Last year, Cato, joined by First Amendment expert Prof. Eugene Volokh, filed briefs supporting lawsuits challenging the licensing schemes in Washington and New Orleans. While the U.S. Court of Appeals for the D.C. Circuit agreed with us that the law was unconstitutional, the Fifth Circuit upheld the New Orleans ordinance, claiming that it was a “content neutral” restriction on speech necessary to protect tourists and the city’s reputation. Joined again by Prof. Volokh, Cato has filed a brief urging the Supreme Court to take this case and reverse the Fifth Circuit’s decision to allow the very kind of licensing scheme that the First Amendment was intended to preempt. Our brief makes three important points. First, the very idea of licensing speakers is incompatible with the First Amendment. The Supreme Court has said time and time again that governments can’t restrict who may speak in order to improve the quality of what they say. Second, because the licensing requirement only applies to speech on a particular subject and is explicitly justified by that content, it can only be considered constitutional if it satisfies the requirements of “strict scrutiny.” That means it must be narrowly tailored to serve a compelling government interest — a test this law would surely fail (unlike, say, a requirement that bicycle-tour operators maintain safe bikes and observe the rules of the road). Finally, the other arguments for applying a more lenient test than strict scrutiny are unpersuasive: tour guides, unlike doctors and lawyers, aren’t “professionals” whose speech to clients is so important (and potentially dangerous) that it can be regulated without offending the First Amendment. Nor does the fact that tour guides are paid for their speech alter the constitutional calculus: writers, pundits, and actors — and even think tank scholars or law professors — don’t gain some special First Amendment rights when they’re volunteering their talents. Tour guides are no different.

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