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License and Exam Required to Speak for Money About History:

The Institute for Justice is challenging Philadelphia's new requirement that tour guides be licensed and take special history and geography exams. IJ seems to be exactly right on this: Such a requirement violates the First Amendment.

The government surely couldn't require that authors of history books or travel books be licensed and take exams. Nor can it require the same as to producers of travel documentary DVDs, or actors in theaters that present history/geography-related informational entertainment.

Such restrictions would be seen as unconstitutional content-based prior restraints, even if they don't purport to directly control (say, through loss of license) what is said: They bar speakers from speaking until a license is received, they are justified by the desire to prevent speech with a bad content, and they apply only to speakers who would convey a particular sort of content (history or geography in my hypotheticals).

The answer isn't any different for tours, which are likewise a form of history-/geography-related infotainment. They are speech in the quite literal sense of the word, and they are no less constitutionally protected than are books, videos, or plays.

None of this speaks to content-neutral requirements aimed at non-content-related harms, for instance requirements that theaters provide ample fire exits, or that tour operators use only licensed drivers and carry adequate liability insurance. But the Philadelphia requirements, as I mentioned, apply to speech of a particular content (tours that "provides information on the City's geography, history, historic sites, historic structures, historic objects or other places of interest"), and they are aimed at preventing allegedly misleading content. To make things even clearer, an exemption for tour companies that educate their own guides is applicable only after a content-based judgment on the city's part -- "[i]f the Department determines that the educational program and method of evaluating tour guides is equivalent to or exceeds the written examination required by this Section" -- though even if this exemption was removed, the rest of the ordinance would still impose an unconstitutional content-based prior restraint.

Just to anticipate some rebuttals: (1) Tour guide speech doesn't fit within the "commercial speech" zone of lowered protection, because that zone basically covers only commercial advertising, not speech sold for money (or else ordinary books, newspapers, movies, plays, and the like would generally be "commercial speech" so long as customers had to pay for them). (2) Nor can such licensing and testing systems be justified by general consumer protection rationales, or by a theory that sellers of speech are engaging in misleading advertising when they promote "historical tours" that teach bad history; again, consider the analogy of books, videos, and the like. (3) Licensing and testing is of course commonplace for professional-client business relationships, including ones that chiefly consist of speech, such as lawyer-client or psychotherapist-client relationships; but the premise there is that these involve personal advice aimed at a particular person's situation, and usually in high-stakes contexts -- they surely don't apply to tour guide / patron relationships any more than to author / reader relationships. (4) Naturally, the government as employer may impose various credentialing requirements on employees who talk on its behalf, but that's not what's going on here.

If the government is really worried about tourists' being misled, and the problems not being resolved through market pressure (tours, after all, don't like online criticisms, or people telling their hotels' concierges what a bum recommendation the concierge had given), the government can easily set up an optional "Seal of Approval" system; and tours that get the Seal will surely promote it as a sign of superiority over others that don't have the Seal. But mandatory content-based licensing and examination requirements for speakers are unconstitutional, and a very bad precedent that could easily be extended to other classes of speakers as well.

Jacob Berlove:
Would it be/ is it constitutional to require credentials to teach?
7.10.2008 6:15pm
DaSarge (mail):
Let's see, .... requiring a license issued by the gov't in order to exercise a constitutional liberty. Seems like a contradiction in terms, to me.
-- Does one need a license to freely exercise one's religion?
-- Does one need a license from the gov't in order to be free of un-
reasonable searches &seizures?
-- A license from the gov't granting leave to cross-examine witnesses?
-- To keep &bear arms? Oops, ...

I have never understood why anyone would think it reasonable that a constitutional right should require permission of the gov't to excercise that right.
7.10.2008 6:27pm
Dilan Esper (mail) (www):
I think I agree with Prof. Volokh, but this looks to me like a tougher case that he seems to think.

Essentially, if the city is simply imposing an education requirement, in a sense, the city isn't regulating the content of speech at all. The tourist guides can still teach whatever they want to and need not convey the officially approved history. They simply need to pass a test and demonstrate familiarity with the narrative.

Thus, doctrinally, you have a content-neutral restriction that burdens speech. However, this isn't a time, place, or manner restriction. Rather, it is intended to influence the content, even if the tourist guides retain the freedom to say whatever they want.

So, the question is, what is the level of scrutiny applied to a content-neutral restriction which is not a time, place, or manner restriction. And the answer is, I am not sure this is a settled question of First Amendment doctrine. It might be strict scrutiny, it might be intermediate scrutiny.

That said, however, the reason I would tentatively come down on Prof. Volokh's side is that even under a lesser level of scrutiny, it doesn't seem like any particularly important state interests are being served here.
7.10.2008 6:28pm
Eugene Volokh (www):
DaSarge: I'm hesitant to make broad statements about licenses across all constitutional rights. One does need a license from the government to marry, though the Court has recognized a right to marry. One needs a license to engage in certain kinds of speech, such as demonstrations in certain high-demand public places. Under Lucas, the government may not bar me from developing my property if such a bar would make the property nearly worthless, but the government may require a license before I build my dream home. If one wants someone to serve as one's lawyer, that lawyer needs a license from the government; likewise, if one wants to get a surgical abortion, one would need to engage a doctor, and the state may require that the doctor be licensed. Maybe all these requirements are improper, but they suggest that the list you gave is incomplete; and in any case, they suggest that requiring a license to exercise a constitutional right is not a contradiction in terms, at least in some situations.

Dilan Esper: It's not just that the testing requirement is justified by a concern about content. It's also applied only to people who speak on certain subjects, so it's not a "content-neutral restriction" even on its face.

Plus even if this were a content-neutral restriction, it would delay speakers by far longer than most such requirements would: One can't get a license at all until after one passes the exam, which could take a few weeks if one passes the first time around, or months if one has to take the exam more than once.
7.10.2008 6:36pm
PersonFromPorlock:

...and in any case, they suggest that requiring a license to exercise a constitutional right is not a contradiction in terms, at least in some situations.

Alternatively, they suggest the government simply ignores inconvenient constitutional questions. You can make the observation you did but it doesn't really lead anywhere.
7.10.2008 6:43pm
Frater Plotter:
The abortion example is sneaky. The licensing requirement is not on the person with the right (the patient) but on the person performing the operation (the doctor).

But there are examples that hew to the realm of speech rather than privacy. You may express yourself with a neon sign, but to have it installed in a business you may need to do business with a licensed electrician. You may say what you like with skywriting or on the side of a blimp, but you must use a licensed pilot and follow FAA requirements.

The purpose of licensing in all these cases is to regulate safety, not to restrict or influence expression. The electrician knows how to install high-voltage systems without setting the building on fire. The pilot knows how to fly a plane or a blimp without killing people.

Licensing tour guides on the basis of their knowledge of history has no such safety aspect. Teaching bad history does not kill people, the way that flying a plane badly or doing bad electrical wiring can.
7.10.2008 6:55pm
alkali (mail):
I tend to agree that this is a hard case.

Suppose that I wrote a series of books called "Easy Arabic for Americans" purporting to teach Arabic, and I have a bunch of related products -- language videos, lectures, etc. At some point someone realizes that all I am doing is drawing squiggles and talking nonsense in a fake accent a la Sid Caesar.

It seems to me that the government -- say, a state AG armed with consumer protection statutes -- could take rather aggressive action to shut me down, plus I'd be subject to liability to my customers at common law.

If I claimed a First Amendment defense to all that, I'm pretty certain I'd be laughed out of court.
7.10.2008 6:55pm
AST (mail):
Look for the persons who will gain financially from the requirement, such as established tour businesses trying to prevent competitors from entering the market.

The government has police powers, but it too often uses them to protect certain classes, unions and other groups from competition.

The other day I watched a documentary on the History Channel which had several glaring errors about the war between Persia and the Greeks in Herodotus. Should the History Channel lose a license to broadcast?
7.10.2008 6:58pm
Sasha Volokh (mail) (www):
alkali (an Arabic name?): Eugene's the expert here and not me, but I'd just point out that the AG in your example isn't engaging in prior restraint, just going after the false stuff after it's already spoken.
7.10.2008 7:01pm
nick:
Alas, the fact of the matter is that we have a number of highly entrenched laws and government practices that constitute compelled speech, prior restraint on speech, or both. Courts have exempted them from the First Amendment by arbitrary fiat. For example:

(1) Laws requiring attendence at schools, which compel students to listen to government-mandated speech and with tests compel students to express themselves in specific government-sanctioned ways.

(2) Laws requiring bar membership (which usually requires passing a test, again government-compelled speech) in order to practice law.

Indeed, both in bar exams and public school exams the "correct" answers are often highly political in nature: they not only compel speech, and constitute a prior restraint on speaking in a contradictory manner, but the speech compelled by these exams often involves the core of the First Amendment, political opinion, not just demonstration of commercial or occupational knowledge. Government-mandated exams generally should fall to the First Amendment, but I'm not holding my breath.
7.10.2008 7:08pm
AKD (mail):
alkali,

What if you said it was satire?
7.10.2008 7:11pm
T. Gracchus (mail):
You need more of an argument on reply (3). Securities regulations is direct regulation of speech -- you should buy this! No doubt there is a line of libertarian arguments against licensing, but they are not relevant here. Given the wide range of regulation already permitted on speech, particularly speech with economic value, this is not the easy case you make out.
7.10.2008 7:19pm
Ahcuah (mail):
Just the existence of the "Seal of Approval" option means that any such licensing regulation is not narrowly tailored (either a strict scrutiny "narrow" or a time-place-manner "narrow" (because the definitions are different depending on the level of scrutiny-bleh)).
7.10.2008 7:21pm
Fub:
Sasha Volokh wrote at 7.10.2008 6:01pm:
alkali (an Arabic name?): Eugene's the expert here and not me, but I'd just point out that the AG in your example isn't engaging in prior restraint, just going after the false stuff after it's already spoken.
I'm not even related to an expert, but I think that in the hypo alkali presents, any liability (if there is liability) would not be for the squiggles and nonsense talk. That speech is protected. Any liability would for the a fraudulent claim of teaching Arabic.

I'd go a bit further. I think that publishing a book that falsely claims to teach anything (or to otherwise discourse on anything) would be protected. Otherwise books on how to live longer and healthier with a peanuts and beer diet would be subject to prosecution. And people still sell The Protocols of the Elders of Zion.
7.10.2008 7:29pm
Bad (mail) (www):
"Suppose that I wrote a series of books called "Easy Arabic for Americans" purporting to teach Arabic, and I have a bunch of related products -- language videos, lectures, etc. At some point someone realizes that all I am doing is drawing squiggles and talking nonsense in a fake accent a la Sid Caesar."

I don't care what else you have to say. You must go do this immediately because it would be awesome.
7.10.2008 7:38pm
Andrew J. Lazarus (mail):
I don't have the expertise to weigh in on the Constitutional issue. I do know enough about being a tourist, though, to say that many incompetent guides and tour companies do a fine living by kickbacks to hotel concierges and other techniques having little to do with quality.

I think a city "Official Licensed Guide" program that was voluntary might be the best of both worlds, as it would give a competitive advantage to the more qualified.
7.10.2008 7:58pm
LM (mail):
EV,

Are you assuming the predominant function of a tour guide is to provide commentary, not the service of leading (by foot) or transporting (by bus) customers to a series of pre-agreed locations? I don't have an opinion about which function predominates, but re: the latter it's commonplace for taxi and bus drivers to be test-licensed to assure they know how to get where they agree to take you.
7.10.2008 8:07pm
Mike S.:
The law is somewhat more narrowly tailored than you say.

1) It is restricted to people conducting tours for pay on public property. Anyone can say what they want about history, even on public property in the covered distric, provided they just stand still.

2) Or they could stay on private property

3) Or they can volunteer rather than accept pay.

4) Or they can publish material for a self-guided tour.

5) It doesn't require they either say anything specific or avoid saying anything particular. Only that they demonstrate that they know some history. They can say the Ben Franklin was a Martian hermaphrodite who visited Philadelphia between March 2, 1839 and January 34th 1927 if they want to, without running afoul of the statute. Just not on the exam paper (I assume).

The law is certainly foolish, but I am not sure it is unconstitutional. And it
7.10.2008 8:08pm
LM (mail):
Anyone who thinks a Martian hermaphrodite would be caught dead in Philadelphia has no business misleading the public with his silly fantasies.
7.10.2008 8:20pm
Suzy (mail):
Just tangentially, the tour guides in Greece have to receive a diploma from a national tourist organization.
7.10.2008 8:29pm
Angus:
I am not a lawyer, but I was struck by one commenter's comparison to the bar exam for lawyers. Lawyers in every state must first pass an examination proving their competency before they can practice. I have not seen anyone argue that this is unconstitutional. However unwise or foolish it seems, why would it be unconstitutional for a city to insist on the same thing for tour guides?
7.10.2008 8:35pm
Splunge:
NOTE: the information provided in this tour is for entertainment purposes only and is sold As-Is, without expressed or implied warranty as to its accuracy or suitability. We are not responsible for any damages, pecuniary or psychological, which you may incur from employing it in the context of Internet, cocktail party, or post-coital argument. Please consult an officially licensed tour guide before betting real money on what Jefferson meant by "We hold these truths to be self-evident" et seq. All rights reserved, offer void where prohibited, see prospectus before investing, do not bend, fold, spindle or mutilate.
7.10.2008 9:10pm
Bpbatista (mail):
I suppose the same analysis would apply to the federally Licensed Battlefield Guides at Gettysburg.

http://www.gettysburgtourguides.org/
7.10.2008 9:35pm
Cold Warrior:
I'm with Dilan on this one. Seems to me it's a stretch to suggest that Philly would require a certain script, or would censor non-brotherly lovish sentiments.

Isn't there a perfectly adequate consumer protection rationale here? Guides are marketing themselves as people who are knowledgeable about Philly history and geography; why would anyone want a guide who isn't? Just as I imagine Philly has an interest in making sure that would-be guides aren't scam artists or dangerous felons.

Color me untroubled.
7.10.2008 9:39pm
zooba:
The rationale doesn't matter. The fact that it is a regulation of speech in a traditionally public place makes it worse, not better, and therefore a very high standard exists. Discretionless licencing is okay as a reasonable time, place, matter restriction, but testing and licencing to effect a viewpoint restriction of speech on a public place is grossly unconstitutional.
7.10.2008 9:50pm
arbitraryaardvark (mail) (www):
I didn't see the complaint online, so I don't know exactly what IJ's going after, but a few things in the ordinance caught my eye. $25 bribe to apply for the license, plus unstated fee for the books and test. If anybody has the books, could this be put online? It might be fun reading, and I assume it's public domain. Guides required to wear a photo ID identification badge - unconstitutional under Buckley v ACLF, which was a Paul Grant case.

Here's my 25 cent tour of philadephia. Stop reading this comment if you don't agree to pay me $0.25. Let's start in the center of the city, at 14th and Market. There's city hall, with the statute by Calder on top. Grandson is the Calder who did the clothespin, I think. To the northeast is chinatown. Try the dim sum. To the east at 6th st is the liberty bell, and the new fence around it to keep out people like you. Further east is Penn's landing. (Story of trial of Penn.) Next stop is south street, from 10th to 2nd, home of the philly cheese steak and the Wooden Shoe anarchist bookstore. Further south is little italy. Next stop is the farmer's market and the greyhound station and a bar called Judy's - used to belong to Judy Garland.
Ok, that's all you get for two bits. Buy me a beer at Judy's and I'll tell you more, like the Henry George House and Packet Alley and Kater Street and MOVE and Frank Rizzo.
To the south is the gayborhood. I suggest Dirty Franks and Govinda's.
7.10.2008 10:07pm
Mike S.:
Let me try another tack, for a site of lawyers.

The fact that there is more at stake when choosing a lawyer than a tour guide is a strong reason why, as a consumer protection measure, licencing lawyers makes more sense than licensing tour guides. It doesn't offer a reason why a bar exam is less of a restraint on speech than a tour guide exam. In fact, I suspect that neither the bar exam nor the guide exam are really intended to protect consumers--they are inteded to raise the prices of politicallly connected paractitioners by limiting competition. That was certainly the motive for the bar exam and requirements for law school, and I would be surprised if it weren't tour operators who pushed for Philly's statute. In fact, the requirement for law school was an explicit attempt (according to the then president of the ABA) to keep immigrant Jews, Irishmen and Italians out of the profession; if it were passed in the same fashion today it would run afoul of the 14th Amendment.

And the Philly statute doesn't stop anyone from speaking, or even charging to speak, about Philly's historic sites. It justs prevents him from guiding his customers from one site to the next while speaking.
7.10.2008 10:13pm
Mocha Java (mail):
arbitraryaardvark,
For someone who purports to know so much about Phila., I gotta wonder where you came up with 14th St.?
Otherwise, not a bad tour for the money.
7.10.2008 10:28pm
Hoosier:
"alkali,

What if you said it was satire?"

If that doesn't work, use what I would call the "post-modern defense": Just point out that "everyone knows" that there is no such thing as the inherent meaning of a text. That your Arabic lessons just "privilege an alternative narrative."

That should work.
7.10.2008 10:35pm
Tony Tutins (mail):
I like EV's rationale, and hope to apply it myself. The way I cut hair is expressive conduct, aka symbolic speech. Therefore I do not need to obtain a barber's or cosmetologist's license before I set up my chair on a downtown Philly sidewalk (assuming I obey time manner place restrictions.) I mean, what is the harm from a bad haircut? At worst it will grow out again. Let the market place decide.
7.10.2008 10:40pm
dave h:
Wait, a barber is a counterexample? Am I the only person who thinks wasting time licensing barbers is, well, a giant waste of time (and money)?

Does a barber's license exist, or am I missing some satire? Do I need a license for my pet fish, Eric?
7.10.2008 11:03pm
Tony Tutins (mail):

Does a barber's license exist

It does in Pennsylvania, and every other state, as far as I know. What are you, Sikh? Or where do you live? Google "your state" and barber license.
7.10.2008 11:29pm
Fub:
Tony Tutins wrote at 7.10.2008 10:29pm:
It does in Pennsylvania, and every other state, as far as I know. What are you, Sikh?
Worse than that, in sunny California there are walk-in shops full of cosmetology products that are forbidden by law (so they say) to sell to anyone but licensed cosmetologists. I don't know what they sell, but from the windows it looks like bottles, cans and jugs of various hair goo and shampoo, along with some weird devices that look like scissors and combs.
7.10.2008 11:47pm
nick:
Mike S.: the Philly statute doesn't stop anyone from speaking, or even charging to speak, about Philly's historic sites.

Whereas statutes requiring bar membership really do restrict non-lawyers from engaging in a wide array of important kinds of speech about legal topics, and also forbid the expression of political opinions that happen to also fall within the category of forbidden legal opinions. The tour guide statute does not forbid the speech itself, but bar requirements do. Furthermore, the intention to influence later content is even more clear in the case of bar exams than in the case of tour guide exams: bar exams exist almost solely to influence the content of legal opinions. These tour guide exams arguably also exist to influence the content of tour guides' opinions about historical matters, but also exist to ensure that physical guiding and other content-neutral logistics are accomplished competently.

What's worse legal opinions, at least as much as opinions about history and geography, are very often opinions about politics. Indeed the legal profession is far more important to our political system than the tour guide profession. Our political system would be quite impossible without legal opinions, but tour guides are quite peripheral to it. Generally legal speech thus lies at the very core of First Amendment speech, whereas tour guide speech does not.

EV's "personal advice" distinction doesn't make any sense: why would the tour guide statute be fine if only one person is taking the tour but unconstitutional if five people are on the tour? If I give legal advice to a room full of executives without having passed the bar, am I protected by the First Amendment, whereas if I give legal advice to a single individual I am not so protected? Does the First Amendment really apply more to public speeches than to bar-room debates with your buddy? Why would the First Amendment no longer apply if the tour guide gave his client a personalized tour?

With both the Philadalphia tour guides and lawyers, government is compelling individuals to express themselves in very specific ways by requiring an examination. A test is filled with content, some of which the government deems "correct" and others of which it deems "incorrect". In both cases if you fail to express yourself in the specific ways government mandates as "correct" you are deprived of legal rights. A requirement to take a test is about as far from "content neutral" as you can get. And it is the very worst form of speech restriction, compelled speech.

The examination requirement is not only intended to compel speech on the test itself, it is also for both lawyers and tour guides intended to to influence the content of later speech. In both cases the requirement poses a prior restraint on speech: indeed more clearly so in the case of the legal licenses than in the case of tour guide licenses, as the tour guide licenses are required merely to combine speech with giving physical tours for money, whereas legal licenses are required for the speech itself. Legal speech is far more important to our political system than tour guide speech. Why not take the bull by the horns and challenge bar examinations which more clearly and thoroughly violate the First Amendment?
7.10.2008 11:51pm
Dave Hardy (mail) (www):
Yup, barber's licenses exist. Once happened across the chapter in the local state law. Next time I had a haircut I asked the barber what a "finger wave" was, since finger wavers required a special license. I forget the explanation, but it had nothing to do with licensing flipping the bird.

Here in AZ, the legislature disestablished the State Bar as a result of a conflict (in which I happen to think the legislature was in the right). Courts have created local rules requiring bar admission to file a pleading, but anything outside the courtroom is as unlicensed as walking a dog. Can't say this is without its harms (at least a couple of attys, disbarred for dishonesty, have hung out their shingle), but it's a (sorta) free country.

The question I always had about the bar is this. I can understand the bar exam, a test of basic competency. But if a person can pass that, why should their education matter? And why specifically should their education be required to be at an ABA approved school, when ABA is a purely private association, subject to no due process standards, and to which the vast majority of attorneys don't even belong?
7.11.2008 12:14am
wuzzagrunt (mail):
A little off topic....

Q for the lawyers: how big a deal is it to get jammed up for practicing without a law license? The reason I ask is that when growing up, one of our neighbors was busted for "practicing law without a license" (according to newspaper reports). Thereafter, I'd read another story in the paper, every 5 or 6 years or so (fresh out of the joint?), about the same gent engaging in the same activities. To my knowledge, he never possessed a license, and wasn't just practicing under a suspension or whatever. A couple of decades later, there was a story concerning his eldest son, who apparently took up the "family business". I'm pretty certain that Junior never attended law school--or even graduated college.

This was in New York, BTW.
7.11.2008 1:32am
Fub:
Dave Hardy wrote at 7.10.2008 11:14pm:
The question I always had about the bar is this. I can understand the bar exam, a test of basic competency. But if a person can pass that, why should their education matter? And why specifically should their education be required to be at an ABA approved school, when ABA is a purely private association, subject to no due process standards, and to which the vast majority of attorneys don't even belong?
Political power. Regulatory capture. Rent seeking. All the usual suspects.

California, otherwise one of the most heavily regulated states, has relatively permissive qualifications for the bar exam and bar admission. Non-ABA accredited law school study is permitted if students take a 1st year "baby bar" exam. Reading law under tutelage of a licensed attorney is permitted as well.

I'm not sure what has prevented the ABA from capturing CA bar requirements, but they've been that way a long time.
7.11.2008 1:46am
zooba:
Tony: Your analogy fails from the second you mention symbolic speech. It is perfectly okay to have a detrimental effect (aka burden) on symbolic speech through content-neutral regulations that serve an important government purpose unrelated to the suppression of the message. If this were otherwise, then the government could not regulate your "expressive" murders. On the other hand, the regulation in this case directly relates to regulating the content of speech.
7.11.2008 2:55am
Dilan Esper (mail) (www):
Dilan Esper: It's not just that the testing requirement is justified by a concern about content. It's also applied only to people who speak on certain subjects, so it's not a "content-neutral restriction" even on its face.

That's a pretty broad definition of content-based. As I understand it, a tourist guide is required to pass the test no matter what subject matters he or she includes in his or her tour. That looks a lot closer to content-neutrality to me.
7.11.2008 3:06am
David Schwartz (mail):
"That's a pretty broad definition of content-based. As I understand it, a tourist guide is required to pass the test no matter what subject matters he or she includes in his or her tour. That looks a lot closer to content-neutrality to me."

Right, but what is a "tourist guide"?. Section 2e clearly specifies that it's the content of your speech that makes you subject to the licensing requirement.

"Any person ... who ... provides information on the City's geography, history, historic sites, historic structures, historic objects or other places of interest."

If restricting who can provide information on a specific range of subjects is content-neutral, than anything is.
7.11.2008 7:04am
Dilan Esper (mail) (www):
David:

That's not really the definition of content neutrality. For instance, the statute in US v. O'Brien only applied to destruction of draft cards, but it was considered content neutral because it didn't reference the reason the draft card was destroyed.
7.11.2008 12:44pm
Seamus (mail):
I like EV's rationale, and hope to apply it myself. The way I cut hair is expressive conduct, aka symbolic speech. Therefore I do not need to obtain a barber's or cosmetologist's license before I set up my chair on a downtown Philly sidewalk (assuming I obey time manner place restrictions.) I mean, what is the harm from a bad haircut? At worst it will grow out again. Let the market place decide.

Funny you should bring up this hypothetical. You are aware, aren't you, that when the Institute of Justice isn't challenging stupid regulations about licensing of tour guides, it's often challenging stupid regulations about licensing of barbers, hairdressers, etc.? Check this out, and scroll down to see how many cases involve hairbraiding.
7.11.2008 1:40pm
Mike S.:
David: You only quoted part of the definition. The guide must say those things "while guiding or directing people around the city." A person can say whatever he wants, with no license, as long as he doesn't also tell people which way to walk to get to the next site.
7.11.2008 1:44pm
crane (mail):
Fub said
...in sunny California there are walk-in shops full of cosmetology products that are forbidden by law (so they say) to sell to anyone but licensed cosmetologists. I don't know what they sell, but from the windows it looks like bottles, cans and jugs of various hair goo and shampoo, along with some weird devices that look like scissors and combs.


Yeah, mostly hair-care stuff. I once got a bottle of hair dye from one of those places, that said right on the bottle it was illegal to sell to unlicensed me. Somehow I managed to successfully dye my own hair without hurting myself or damaging any property.
7.11.2008 8:32pm
David Schwartz (mail):
Mike S: That was the part that was important. If a law prohibits pro-gun speech in a particular park, you can't point out that it permits pro-gun speech outside the park as an argument that it's content-neutral. One part of the definition is the content of your speech. All other things being equal, you can have two people, one of which requires a license and one of which doesn't, and the only difference is what they're talking about.

Dilan Esper: Sure, but applying that to this case is absurd. That's like saying a law prohibiting arguments in favor of abortion rights are content neutral because they don't depend on why you are making those arguments. Perhaps you want to show how weak they are.

There is simply no way to argue that "provides information on the City's geography, history, historic sites, historic structures, historic objects or other places of interest" is content-neutral with a straight face. Geographical information is one particular type of content.
7.13.2008 6:37am