N.O. tour guide licensing constitutional, appeal courts says

They shepherd tourists through storied cemeteries, share secrets of the historic French Quarter and recount supernatural sightings and other lore of the city. But before they can charge for their services, New Orleans tour guides must pass a background check, a written examination and a drug screening — or risk being fined or jailed for guiding without a license.

Those requirements, which city officials defend as necessary to stave off con men, became the subject of a constitutional clash after four tour guides filed suit against the city in 2011, challenging the licensing requirements under the First Amendment.

Why should a seasoned guide and raconteur, they asked, have to be fingerprinted, urinate into a cup and pay a recurring fee in order to impart New Orleans’ rich history to visitors through the exercise of free speech?

A three-judge panel of the 5th U.S. Circuit Court of Appeals has weighed in, but its answer wasn’t what the plaintiffs had hoped to hear. Affirming a lower court’s ruling last year, the appellate judges essentially agreed with city officials that tour guide licenses amount to a regulation of business — not speech — and that they have “no effect whatsoever on the content of what tour guides say.”

“To put it simply, New Orleans thrives, and depends, upon its visitors and tourists,” the panel wrote in a three-page decision Monday. “For the benefit of those visitors, the city identifies those tour guides who have licenses and are reliable, being knowledgeable about the city and trustworthy, law-abiding and free of drug addiction.”

Matt Miller, of the Arlington, Virginia-based Institute for Justice law firm, said the plaintiffs were “very disappointed” and are considering seeking a review from the entire 5th Circuit or the U.S. Supreme Court. “We haven’t made a decision yet,” he said, “but we expect to do so within the next week or so.”

For Mayor Mitch Landrieu’s administration, the ruling marked further vindication of ordinances that aim to protect out-of-towners from being scammed. “Licensed tour guides are important ambassadors for New Orleans, and we will continue to ensure that the individuals providing these services have met the knowledge, background-check and drug-screening standards,” City Attorney Sharonda Williams said in a statement.

Prospective tour guides must score 70 percent or better on a written exam that measures “the applicant’s knowledge of the historical, cultural and sociological developments and points of interest of the city,” and officials may also require a verbal exam and interview.

Guides have to pay an initial licensing fee of $50 — plus a $20 renewal fee every two years — and must not have been convicted of a felony within the prior five years to be approved.

Anyone caught conducting tours without a license can face up to five months in jail and a $300 fine for a misdemeanor under city code.

“Despite the fact that one’s fingerprints do not change over time, applicants must be refingerprinted every two years as a condition of license renewal,” Miller complained in one court filing. “Applicants must travel to New Orleans International Airport to be fingerprinted. If their fingerprints cannot be accurately scanned by the electronic scanner, they must come back later and submit their fingerprints via an ink-and-card system.”

Bob Freeland, president of the Tour Guides Association of Greater New Orleans, said his organization of some 140 members opposed the lawsuit, in part because of the educational benefits fostered by the licensing rules. But he said his members have been irked by the rule that requires guides to renew their licenses every two years — a process Freeland characterized as redundant and time-consuming.

“We had past members who were ex-military who would say their clearance was good for five and 10 years in the military,” Freeland said in an interview, “and here, as tour guides, the city wants to check up on us every two years.”

City officials contend the rules serve three purposes: They ensure tour guides are knowledgeable enough to conduct tours, have no criminal history that could pose a danger to tourists and won’t engage in “behavior that may be associated with illicit drug use.”

The plaintiffs said the licensing requirements, while not banning speech outright, are unconstitutional because they place conditions on tour guides’ right to speak to earn a living.

“Speech about the city’s history and points of interest requires a license,” Miller wrote in a court filing. “Speech about other topics — in the same forums and by the same individuals — does not.”

City officials said the history exam is justified in part to prevent tour guides from disseminating inaccurate information. “When pressed for examples of the kind of inaccuracies the city was concerned about,” Miller added, “the city said it had received complaints about tour guides saying a particular house is ‘Brad Pitt’s house, when it’s not Brad Pitt’s house.’ ”

Williams, the city attorney, said the plaintiffs seemed to ignore the fact that the ordinances apply to tours for hire, which she described a “regulation of business within the city’s police power.”

“Indeed, when asked during their depositions to explain how they have been damaged by the city’s licensing requirements, none of the plaintiffs stated that their speech has been restricted,” Williams wrote. “The damages recited by the plaintiffs are the inconvenience of traveling to City Hall and the airport to have their licenses renewed.”

In granting summary judgment to the city last year, U.S. District Judge Susie Morgan held that the requirements were “content-neutral” and that the city’s concerns “related to the quality of the consumer’s experience, which a city dependent on tourism has a substantial interest in protecting.”

“The city protects that experience by weeding out tour guides too dangerous to lead strangers around a strange city and too unserious to be willing to study for a single exam,” Morgan added in her ruling.

The 5th Circuit decision upholding Morgan was written by Judge Thomas M. Reavley. Judges James Graves and Edith H. Jones joined in the judgment, though only Graves concurred in the opinion.

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