My first paid job at age 14 was giving tours of historic Cambridge, Massachusetts. I did a lot of research and studied hard, but I still remember the moment, mid-tour, when I forgot the year an old wall was built. Then it dawned on me: My clients didn’t know, either. They were completely dependent on me and had no way to check.
The incident dramatizes a constitutional problem that haunts all efforts to license historic tour guides. Right now the problem is on display in Charleston, South Carolina, a place with a lot of history. A federal judge has to decide whether the city is violating tour guides’ free-speech rights by requiring them to pass a 200-question written test, plus a follow-up oral exam, to get a license that would allow them to give tours.
So far, the judge has avoided showing his hand. He issued an order this week refusing to dismiss the suit and setting a trial date — a win for the tour guides. That means he thinks the First Amendment applies. But at the same time, he declined to issue a preliminary injunction against the law, allowing it to remain in effect. That’s a signal that he’s not confident the First Amendment actually prohibits the ordinance.
You can’t blame the judge for not jumping to conclusions. The First Amendment question is in fact very hard — the kind of situation that would make for a great law school exam. But the lawyers — and the judge — should be aware: A 2015 Supreme Court opinion may have altered the legal landscape.
Start with the question of what kind of speech is covered by the city’s tour guide ordinance. Most forms of business licensing don’t directly involve speech, and if they do, the talking surrounds commercial transactions, like in an antique shop where the proprietor would have to describe the products and negotiate price. Regulating an antique dealer would come under the category of commercial speech, which gets less First Amendment protection than does self-expression.
But the tour guide ordinance doesn’t just regulate commercial speech. It covers even unpaid tour guides. And the content of historic tours is pretty essential to the core First Amendment value of political speech — especially in a place like Charleston, where the politics and the history would be impossible to disentangle.
Once we know the First Amendment applies, the next question is whether the ordinance targets speech. The city will claim that it isn’t aiming at the content of speaking at all — it’s just trying to regulate the business of taking people around on tours. As long as I’m not being a tour guide, I can say anything I want as I walk through the streets of Charleston.
The closest analogue the courts have considered in recent years might be California’s law prohibiting gay conversion therapy by licensed medical professionals. The therapists claimed that the law limited their free-speech. But the U.S. Court of Appeals for the Ninth Circuit ruled against them. It held that what was being regulated wasn’t speech but a course of conduct, namely a medical therapy that happened to take place using words.
Charleston’s argument that it isn’t targeting the content of speech is harder to make. If I walk through the streets of historic Charleston talking to a group of personal friends, I’m (presumably) not covered by the ordinance. But if I am lecturing them about the history of Charleston, I am. That sounds a lot like a regulation based on the content of what I say.
And even if the ordinance targets the conduct of tour-guiding rather than content, the law applies to me in virtue of the words I am speaking. The Supreme Court gives that kind of law a special sort of scrutiny, with the awkward name “more than intermediate.” It’s doubtful that the ordinance can survive that scrutiny.
And arguably, a more recent Supreme Court decision, decided in 2015, after the California gay conversion therapy case, makes this whole analysis even simpler. In a case called Reed v. Town of Gilbert — which is gradually coming to seem like a landmark decision (although I didn’t fully realize it at the time) — the court held that a town ordinance treating different yard signs with different rules based on the purpose of the communication, amounted to content-based discrimination. The justices required the town to justify such a law in the face of strict scrutiny, which means the town would have had to show that it had a compelling interest in the ordinance and that it had achieved that interest by means of a narrowly tailored law.
Almost no town ordinance can survive such scrutiny —certainly not Charleston’s. The lower courts are still trying to figure out how broadly the Reed precedent applies. But given how other courts are going, the precedent will most likely apply to the Charleston tour guide ordinance because the law treats tour guides differently from other speech.
The upshot is that tour guides are very likely to be free from the Charleston ordinance as soon as the judge gets to work on the case. That’s probably good for free-speech, even if it might be bad for historical accuracy. Let the tourist beware.
Noah Feldman, a professor of constitutional and international law at Harvard University, is a Bloomberg View columnist.