Tour guide (copy)

Charleston is being sued over its ordinance stating only licensed tour guides can explain the city's history for money. File/Dave Munday/Staff

A judge has ruled that a dispute over the licensing of Charleston's tour guides will proceed toward a bench trial.

On Monday, U.S. District Judge David Norton issued an order denying requests on both sides to get him to settle the lawsuit in their favor.

A city ordinance says nobody can conduct paid tours until they pass a 200-question test to get a license. Three people who failed the test sued the city in 2016, alleging the rule violated their freedom of speech. They are being represented by the Institute for Justice of Arlington, Va.

"In this country, we rely on people to decide who they want to listen to rather than relying on government officials to decide who is allowed to speak," Robert McNamara, a senior attorney with the institute, said in a statement after the order was filed. "Charleston’s licensing law gets that principle exactly backwards, and we look forward to vindicating the First Amendment."

The city issued a statement to the contrary.

"At trial, the evidence will show that the No. 1 reason people visit Charleston is positive recommendations from friends and family, and that the city’s reputation is ‘critical’ to visitors’ decisions to select Charleston as a tourist destination," attorney Carol Ervin, who represents the city in the case, said in an email. "The evidence will also show that the city enacted the ordinance to protect tourists and the city’s tourism industry by ensuring tour guide customers get what they pay for."

A judge will have to wade through some complex legal questions, including whether the city ordinance is "content based" or "content neutral" or subject to "strict scrutiny" or "intermediate scrutiny," according to Norton’s summary of the central questions involved.

Looking at the arguments from the plaintiffs’ viewpoint, the city’s 490-page study guide and licensing law could have been designed "with a content-based purpose in mind — namely, to promote the city’s version of its history," Norton wrote. "Plaintiffs argue that these statements reveal a content-based purpose because they prove that the city wants tour guides to provide certain information to visitors when asked about certain topics."

But on the other side, "the city argues that it was never concerned with the content of the tour guides speech for content’s sake, but instead, it was only concerned with prohibiting tour guides from deceiving their customers by distributing inaccurate information," Norton wrote.

He cites a 2016 study by the College of Charleston's Office of Tourism Analysis that "the Charleston area's history and historic attractions have remained and will presumably continue to be the most important factor in visitors' decision to visit Charleston."

The city has said the content of the study guide is based on what tourists have said they want to learn about.

Norton concluded that an ordinance "may impact the content of speech and still avoid strict scrutiny, as long as the government’s ultimate purpose is content-neutral."

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He then moved on to the plaintiffs' argument that even if the city’s regulations are content neutral, they fall under another level of "intermediate scrutiny."

"The only issue that plaintiffs can seriously dispute under the intermediate scrutiny analysis is whether the licensing law burdens substantially more speech than necessary," Norton wrote.

He then notes that the licensing laws don’t prevent anybody from discussing any issue anywhere and only restrict "certain forms of speech in specific parts of the city … for payment."

No date for the judge to hear final arguments has been set.

Note: This story was updated to clarify that a judge and not a jury will settle the issue.

Reach Dave Munday at 843-937-5553.