Billups v. City of Charleston

May 9, 2019 • Legal Briefs
By Eugene Volokh, Ilya Shapiro, and Trevor Burrus

The city of Charleston makes it illegal to give guided tours unless you first obtain a tour‐​guide license. To get a license, a would‐​be guide must pass two different examinations, a 200‐​question written exam and an oral exam during which city officials grade their verbal descriptions and storytelling abilities. Only then can would‐​be tour guides finally talk to willing customers about the history and culture of Charleston.

Kim Billups wanted to start a unique tour‐​guide business where she would give tours in full costume. She studied extensively for the exam and aced an online practice test. But when she took the exam she was surprised by the trivial questions that were posed, such as one about Darius Rucker, the lead singer of the 90s band Hootie and the Blowfish. She didn’t pass, and therefore she didn’t receive the government’s permission to speak on the street.

With the help of the Institute for Justice, Billups sued the city on the grounds that requiring a license to speak violates the First Amendment. The city actually lost in federal district court but later appealed to Fourth Circuit. Cato has filed a brief in support of Billups arguing that Charleston’s licensing regime is a content‐​based restraint on speech and therefore must pass the strictest judicial scrutiny.

Charleston’s licensing scheme is yet another example of government speech regulation run amok. The justifications offered for Charleston’s licensing law explicitly refer to the content of guides’ speech. As the Supreme Court has repeatedly held, a law regulating the content of speech—as opposed to its location, timing, or manner—is subject to strict scrutiny, the highest level of judicial review and a standard that the city simply can’t meet. For one, the law only regulates speech about Charleston’s historical landmarks without regulating speech of other subjects. Moreover, the general purpose of the licensing law is to improve the quality of tour guide’s speech, and therefore can’t be justified without reference to the speech’s content.

Indeed, licensing laws like Charleston’s have already been struck down by other federal courts. Back in 2014, the D.C. Circuit struck down a law that required a 100‐​question multiple choice examination and a $200 fee to get a tour guide license. That court ruled that the city’s reasons for regulating guides’ speech was insufficient to justify that kind of content‐​based regulation.

The First Amendment guarantees that people can freely speak their minds, including as tour guides, without undue government interference. The Fourth Circuit should rule, in line with other courts around the nation, that governments can’t demand someone pass a government‐​administered test and acquire a license before sharing their personal stories and historical insights, even as a tour guide.

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