Judge hears Charleston’s tour guide licensing case

Those who give tours in downtown Charleston for pay have to get a special license from the city, but a federal lawsuit is challenging that practice on First Amendment grounds.

Tour guides still need a license to be paid for showing Charleston to visitors, but U.S. District Judge David Norton soon could decide if that should stop.

Norton heard arguments in a lawsuit brought by the Institute for Justice on behalf of three people who took — and failed — the city’s tour guide test and claim it violates their right to free speech.

At issue in Tuesday’s hearing was whether the court should dismiss the lawsuit and, if not, whether it should suspend the enforcement of tour guide licensing until the case is heard.

Institute attorney Arif Panju said the licenses violate the First Amendment.

“In this country, under the First Amendment, we rely on people to decide who they want to listen to,” he said. “The city admits the licensing law they’re enforcing is based on their interest in what the city’s tour guides say.”

But attorney Carol Ervin defended the city’s licensing, saying that it infringes on no one’s First Amendment rights, though it does curb whether they can be paid for talking on city streets.

“They are free to speak, just not to charge,” she said. “Our ordinance does not control speech. It regulates occupational conduct.”

For several decades the city has required tour guides to get a licenses, and it currently has more than 500 licensed guides.

But the lawsuit already is changing the landscape. Tuesday’s hearing comes just one week after Charleston City Council proposed repealing portions of the tour guide law in response to the lawsuit.

On April 26, City Council is expected to give final approval to plans to lower the pass-fail threshold on its 200-question exam from 80 percent to 70 percent. Since 2013, 344 people have taken the test and 164 passed. Another 81 — including two of the three plaintiffs — would have passed if the threshold were at 70 percent.

Norton asked Ervin whether the 70 percent threshold would apply retroactively, and Ervin said she did not think so, though City Council could clarify the point when it reconsiders the issue this month.

The city also may eliminate the oral portion of the tour guide test — a part that never has caused anyone to flunk but that still was raised in the lawsuit. And it is expected to offer the tour guide test far more often.

The plaintiffs in the case include Kim Billups, owner of Charleston Belle Tours, and tour guides Mike Warfield and Michael Nolan. None spoke during the hearing, but all talked to reporters later.

Nolan said he wants to give tours based on the challenges facing the city’s future, such as the arrival of almost 50 new residents a day, not so much about the city’s history or architecture.

“Who gets to decide what the important questions are?” he said. “I’m sorry. I get kind of angry about this.”

The Institute, a right-leaning nonprofit, has challenged the legality of tour guide licensing in other cities. It prevailed to some degree in Savannah, Philadelphia and Washington, but lost its case in New Orleans.

Robert McNamara, an institute attorney, said it’s unclear if there would need to be a trial in the case. Most of the institute’s other tour guide cases were settled on summary judgment without any trial.

“The facts really aren’t in dispute,’ he said, “but I won’t rule out a trial.”

Reach Robert Behre at 843-937-5771 or at twitter.com/RobertFBehre.