The city of Charleston got its long-awaited chance Friday to argue that it should be allowed to require prospective tour guides to pass a test.
The Fourth Circuit Court of Appeals in Richmond, Va., held remote oral arguments for the case, which has pitted the city against a free speech group that alleges Charleston has violated free speech rights with its rules.
U.S. District Judge David Norton ruled in favor of the group in August 2018 when he struck down mandatory tour guide testing as unconstitutional. Charleston has been waiting to return to court since January of last year, when it formally appealed that ruling to the court in Virginia.
Originally, oral arguments were scheduled for mid-March, but the proceedings were pushed off until early May. The onset of the coronavirus health crisis brought another change: Arguments would be presented over telephone.
The city was represented Friday by Russell Hines of the law firm of Young Clement Rivers. Arif Panju, a senior attorney with the Arlington, Va.-based Institute for Justice, represented the three would-be Charleston guides who filed the lawsuit that started the dispute back in 2016.
Hines started off the arguments, and the three presiding judges — J. Harvie Wilkinson III, Paul V. Niemeyer and Robert B. King — interjected with questions almost immediately.
"The city's licensing law is not, in fact, regulation on speech," Hines began.
Wilkinson chimed in shortly after, challenging that statement.
"When the tour is given, and the guides are deemed qualified to conduct that tour, isn't what the guides do speech?" he countered.
Hines clarified that the testing requirement only applies when a person wants to be paid for giving tours, not to just anyone showing people through the city and pointing out landmarks.
Later on, Wilkinson suggested a "potentially promising" solution that would "lessen the regulation of speech" while still preserving the city's interest in ensuring the information tourists are paying for is accurate.
He suggested the city keep the test but make it optional and issue a uniform, button or insignia that marks the guide as city-certified.
Since Norton's 2018 ruling, the city has continued to administer its exam, though it has, because of that legal decision, made it voluntary — at least for the time being. During 2019, the first full year that the test was optional, 73 people took it, a difference of just 10 compared to the year before, according to the city.
In the interim since mandatory licensing was struck down, a group of local tour operators also formed their own guild. City-certified guides only are allowed in, and they designed a special Palmetto tree logo to designate guild members.
The city, Hines told Wilkinson, has not pursued its own system like he had described because it "wouldn't be as effective" as requiring all prospective guides to pass a test.
Doing so would essentially be the same as "relying on market forces," he said.
While Niemeyer said that he understood the city's interest in regulating tours, he said what troubled him was the breadth of that ordinance.
"I'm not sure it should be broad as you guys have done it," he said. "You have actually failed people who sound like they're pretty good but they couldn't pass the test because of the huge manual they had to learn."
Questions on the written exam come from the city's training manual for guides, which is about 500 pages long. It covers topics like Charleston history, architecture and preservation.
The Institute for Justice's lawyer started his argument with a statement that directly countered Hines' opening line.
"This is a free speech case," Panju said.
Panju argued that other tourism-heavy cities in the U.S. have successfully used "less restrictive alternatives" for touring that he said Charleston should try. He cited Baltimore, Chicago and nearby Savannah as examples of cities with optional certification programs.
In his rebuttal, Hines said that an "alternative" to the city's mandatory licensing program can only be a considered one if it is "at least as effective" as the existing law.
"Because if it's not, it's not an alternative," Hines said.
The appeals court will issue a written decision at a later date. If the U.S. District Court ruling is overturned, the city has said it plans to reinstate its mandatory testing policy for tour guides.