Edwards v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 2014 Decided June 27, 2014
No. 13-7063
TONIA EDWARDS AND BILL MAIN,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Consolidated with 13-7064
Appeals from the United States District Court
for the District of Columbia
(No. 1:10-cv-01557)
Robert J. McNamara argued the cause for appellants.
With him on the briefs were William H. Mellor III and Robert
W. Gall. Paul M. Sherman entered an appearance.
Erik Jaffe and Ilya Shapiro were on the brief for amicus
curiae Cato Institute in support of appellants.
Mary L. Wilson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With her on the brief were Irvin
2
B. Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: HENDERSON, BROWN and WILKINS, Circuit
Judges.
Opinion for the Court by Circuit Judge BROWN.
BROWN, Circuit Judge: This case is about speech and
whether the government’s regulations actually accomplish
their intended purpose. Unsurprisingly, the government
answers in the affirmative. But when, as occurred here,
explaining how the regulations do so renders the
government’s counsel literally speechless, we are constrained
to disagree.
In Washington, D.C., it is illegal to talk about points of
interest or the history of the city while escorting or guiding a
person who paid you to do so—that is, unless you pay the
government $200 and pass a 100-question multiple-choice
exam. The District requires that certain tour guides obtain a
tour-guide license, which can be procured by paying
application, license, and exam fees totaling $200, and passing
the exam, of course. Operating as a paid, unlicensed tour
guide is punishable by up to 90 days in jail or a fine of up to
$300, or both. Believing the licensing scheme to be an
unconstitutional, content-based restriction of their First
Amendment rights, Appellants, Tonia Edwards and Bill Main,
refused to comply and filed suit in district court. The court
ultimately upheld the regulations, reasoning the scheme
placed only incidental burdens on speech that were no greater
than necessary to further the District’s substantial interest in
promoting the tourism industry. Finding the record wholly
devoid of evidence supporting the burdens the challenged
3
regulations impose on Appellants’ speech, we reverse and
remand.
I
Edwards and Main own and operate “Segs in the City,” a
Segway-rental 1 and tour business located in Washington,
D.C., as well as in Annapolis and Baltimore, Maryland. As
part of their business model, Appellants rent Segways to
individuals for private use and provide tours to small groups
of people that rent Segways. In D.C., Segs in the City
provides a variety of tours along the city’s streets and
sidewalks. During the summer months, about half of the
tours are led by either Edwards or Main; the rest are
conducted by seasonal independent contractors that
Appellants hire.
A Segs in the City tour has two phases. First, a tour
leader trains a group of no more than ten people how to ride a
Segway and how to comply with local traffic and safety
regulations. Then, after mastering their newfangled
transport, customers depart with their tour guide for one of
several established tour routes. Each tour lasts between one
and three hours, and Segs in the City operates up to five tours
a day, seven days a week. Tour guides use radio earpieces to
maintain constant communication with their customers.
Through their earpieces, tour-group members are advised
where the group is going next and entertained with stories
about nearby points of interest.
1
Segways are self-balancing, personal-transport vehicles.
4
A
Several laws govern various aspects of these activities.
First, Segs in the City is required to have a general business
license. See D.C. CODE § 47-2851.03d. Additionally, the
city has rules governing the use of Segways. See D.C. MUN.
REGS. tit. 18, § 1200 et seq. Appellants and their employees
comply with both. What Edwards and Main object to,
however, are District regulations that levy civil and criminal
penalties for conducting a tour without first taking and
passing a multiple-choice exam. D.C. law prohibits tour
guides from receiving compensation to “guide or escort any
person through or about the District of Columbia, or any part
thereof, unless he shall have first secured a license so to do.”
D.C. CODE § 47-2836.
Implementing regulations clarify the District’s
interpretation of what it means to be a “sightseeing guide.”
A “sightseeing tour guide” is anyone who either (1) “engages
in the business of guiding or directing people to any place or
point of interest in the District” or (2) “who, in connection
with any sightseeing trip or tour, describes, explains, or
lectures concerning any place or point of interest in the
District to any person.” D.C. MUN. REGS. tit. 19, § 1200.1.
The regulations specifically govern Segway tours. See id.
§ 1201.3 (prohibiting unlicensed entities from conducting “for
a fee” tours on “self-balancing personal transport vehicles”).
Violators may be subject to both a $300 fine and 90 days in
prison. See D.C. MUN. REGS. tit. 19, § 1209.2; see also D.C.
CODE § 47-2846.
Altogether, five requirements must be satisfied to obtain
a tour-guide license. See D.C. MUN. REGS. tit. 19, § 1203.
The applicant must (1) be at least eighteen years old, id.
§ 1203.1(a); (2) be proficient in English, id. § 1203.1(b); (3)
5
not have been convicted of certain specified felonies, id.
§ 1203.1(c); (4) make a sworn statement that all statements
contained in his or her application are true and pay all
required licensing fees, id. § 1203.2; and (5) pass an
examination “covering the applicant’s knowledge of buildings
and points of historical and general interest in the District,”
id. § 1203.3.
Appellants take particular exception to the fifth
requirement—the examination. Consisting of 100
multiple-choice questions, applicants must master
subject-matter from the following fourteen categories:
Architecture; Dates; Government; Historical Events;
Landmark Buildings; Locations; Monuments and Memorials;
Museums and Art Galleries; Parks, Gardens, Zoos, and
Aquariums; Presidents; Sculptures and Statues; Universities;
Pictures; and Regulations. Applicants are further advised
that questions are formed from data found in nine
publications. There are multiple versions of the exam, and
applicants must obtain a minimum score of 70 to pass.
B
Contending the regulations’ restriction on their speech
violates the First Amendment, Edwards and Main filed a
motion for preliminary injunction in the district court. See
Edwards v. District of Columbia, 765 F. Supp. 2d 3, 6
(D.D.C. 2011). The District opposed Appellants’ motion for
injunctive relief and sought to have the suit dismissed. Id.
The district court denied the preliminary injunction,
concluding Appellants were unlikely to prevail on the merits
because the regulations are “unrelated to the content of
expression and have, at most, an incidental effect on some
speakers or messages but not others.” Id. at 15–16. The
district court denied without prejudice the District’s motion to
6
dismiss, however, affording the parties an opportunity to
conduct limited discovery. Id. at 20.
At the close of discovery, the parties filed cross-motions
for summary judgment. Once again siding with the District,
the trial judge determined the “licensing scheme targets the
non-expressive conduct of guiding, directing and, more
broadly, escorting, a commercial sightseeing trip or tour, and
only incidentally burdens speech.” Edwards v. District of
Columbia, 943 F. Supp. 2d 109, 118 (D.D.C. 2013). Then,
applying intermediate scrutiny, the trial judge held the
regulations are narrowly tailored to further at least two
“substantial and legitimate regulatory interests”: (1) providing
for “the general welfare of society by attempting to ensure
that those with serious felonies on their records are not
guiding or directing tourists and residents around the
District”; and (2) “promoting the tourism industry by
attempting to ensure that those who guide or direct people
around the District have, at least, some minimal knowledge
about what and where they are guiding or directing people
to.” Id. at 122.
Consequently, the district court granted the District’s
motion for summary judgment, and Appellants filed a timely
notice of appeal.2
2
In case No. 13-7063, Appellants also timely appealed the
district court’s denial of their motion for preliminary injunction.
On April 25, 2013, we consolidated these two appeals. Because
our opinion decides the underlying merits, we dismiss No. 13-7063
as moot.
7
II
We review de novo a district court’s grant of summary
judgment, viewing all evidence in the light most favorable to
the non-moving party. Ayissi-Etoh v. Fannie Mae, 712 F.3d
572, 576 (D.C. Cir. 2013). On appeal, Appellants present
two principal arguments. First, the district court erred in
holding that the tour-guide regulations are a restriction on
conduct instead of a content-based restriction on speech.
Second, even if content- neutral, there is an insufficient
evidentiary basis to conclude the regulations further the
District’s interest in addressing actual problems. Acceding
to the former claim will trigger strict scrutiny. We need not
determine whether strict scrutiny applies, however, because
assuming the regulations are content-neutral, we hold they
fail even under the more lenient standard of intermediate
scrutiny.3
3
The District’s brief suggests the tour-guide license, like
licensing schemes for lawyers and psychiatrists, is merely an
occupational license subject only to rational basis review. See
Appellee’s Br. at 16, 23–24 (citing cases applying rational basis
review); see also id. at 36–38 (citing Lowe v. SEC, 472 U.S. 181,
232, 235 (1985) (White, J., concurring), for the proposition that
tour guides maintain a “relationship of trust and reliance” with their
customers thus warranting professional licensure). The District is
wrong. “One who takes the affairs of a client personally in hand
and purports to exercise judgment on behalf of the client in the light
of the client’s individual needs and circumstances is properly
viewed as engaging in the practice of a profession.” Lowe, 472
U.S. at 232. Appellants do no such thing. They provide virtually
identical information to each customer. Cf. Moore-King v. Cnty. of
Chesterfield, Va., 708 F.3d 560, 564, 569 (4th Cir. 2013)
(upholding a fortune-teller licensing scheme under rational basis
review because the appellant advised clients on “specific inquiries
about their businesses, relationships, or other personal matters”).
8
As a preliminary matter, we note Edwards and Main
lodged both a facial and as-applied challenge to the
regulations. To succeed in a typical facial attack, Appellants
must establish “that no set of circumstances exists under
which [the challenged regulations4] would be valid or that the
statute lacks any plainly legitimate sweep.” United States v.
Stevens, 559 U.S. 460, 472 (2010). In the First Amendment
context, the Supreme Court recognizes “a second type of
facial challenge,” under which a law may be invalidated as
overbroad if “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008). In neither
case, however, must Appellants show injury to themselves.
See Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 958 (1984) (“Facial challenges to overly broad statutes
are allowed not primarily for the benefit of the litigant, but for
the benefit of society—to prevent the statute from chilling the
First Amendment rights of other parties not before the
court.”); see also Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973).
Conversely, to prevail on an as-applied First Amendment
challenge, Appellants must show that the regulations are
unconstitutional as applied to their particular speech activity.
In any event, given the regulations’ incoherence, we doubt the
District could survive even rational basis review.
4
As noted in their briefs and confirmed during oral argument,
Appellants challenge only the regulations defining a tour guide
(D.C. MUN. REGS. tit. 19 § 1200.1), the exam requirement and
related fees (D.C. MUN. REGS. tit. 19, § 1203.3), and the tour-bus
driver exemption (D.C. MUN. REGS. tit. 19, § 1204.3). See
Appellants’ Br. at 7–8, 9, 22–23; Oral Arg. at 11:28–12:30.
9
See Members of City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 802–03 (1984). “[T]he distinction
between facial and as-applied challenges . . . goes to the
breadth of the remedy employed by the Court, not what must
be pleaded in a complaint.” Citizens United v. FEC, 558
U.S. 310, 331 (2010). The substantive rule of law is the
same for both challenges. Legal Aid Servs. of Or. v. Legal
Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010). We
conclude the challenged regulations are both incongruent as
to any tour guide and overbroad.
A
In examining the constitutionality of the challenged
regulations, we will assume, arguendo, the validity of the
District’s argument that the regulations are content-neutral
and place only incidental burdens on speech. The First
Amendment provides that Congress “shall make no
law . . . abridging the freedom of speech.” U.S. CONST.
amend. I. Content-neutral regulations on speech are subject
to intermediate scrutiny. Under this standard, a government
regulation is constitutional if (1) “it is within the
constitutional power of the Government”; (2) “it furthers an
important or substantial governmental interest”; (3) “the
governmental interest is unrelated to the suppression of free
expression”; (4) “the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest,” United States v. O’Brien, 391
U.S. 367, 377 (1968); and (5) the regulation leaves open
ample alternative channels for communication, see Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
The failure to satisfy any prong of the test invalidates the
regulation. Cmty. for Creative Non-Violence v. Turner, 893
F.2d 1387, 1392 (D.C. Cir. 1990).
10
1
All parties agree promulgating the licensing regulations
is within the District’s constitutional power. See Appellants’
Br. at 13 (noting the suit “is not a challenge to the District of
Columbia’s ability to regulate businesses generally or require
them to obtain licenses”). Thus, the first O’Brien prong is
satisfied. Nor could a serious argument be made otherwise,
for Congress long ago delegated to the District the police
power to regulate businesses and occupations. See, e.g.,
District of Columbia v. John R. Thompson Co., 346 U.S. 100,
113 & n.9 (1953); see also Watson v. Maryland, 218 U.S.
173, 176 (1910) (“It is too well settled to require discussion at
this day that the police power of the states extends to the
regulation of certain trades and callings . . . .”). Additionally,
because we assume the District’s licensing scheme is, on
balance, content-neutral, the third prong of the O’Brien test
also is satisfied. See Am. Library Ass’n v. Reno, 33 F.3d 78,
84 (D.C. Cir. 1994). Accordingly, the second, fourth, and
fifth prongs remain.
2
As to prongs two and four, Appellants present two
arguments. First, they contend the record is “utterly devoid”
of evidence that the burdens of studying for and passing the
100-question exam “do anything at all to advance a legitimate
government objective.” Appellants’ Br. at 43. Second, they
argue there is no evidence in the record the District’s interests
would be achieved less effectively absent the exam
requirement. We agree.
Collectively, prongs two and four of the O’Brien test
query whether the challenged regulations are narrowly
tailored to further a substantial government interest. See
11
O’Brien, 391 U.S. at 381–82. A regulation is “narrowly
tailored” when it does not “burden substantially more speech
than is necessary to further the government’s legitimate
interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989).
As a threshold matter, Appellants do not appear to
dispute the District’s substantial interest in promoting the
tourism industry and economy. The District attracts
approximately fifteen million visitors each year and supports
more than 66,000 tourism-related, full-time jobs, which
generate some $2.6 billion in wages. See Edwards, 765 F.
Supp. 2d at 18. Undoubtedly, promoting a major industry
that contributes to the economic vitality of the District is a
substantial government interest. See Smith v. City of Ft.
Lauderdale, Fla., 177 F.3d 954, 955–56 (11th Cir. 1999)
(recognizing Florida’s substantial interest in promoting
tourism—“one of Florida’s most important economic
industries”); Ctr. for Bio-Ethical Reform, Inc. v. City & Cnty.
of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006)
(acknowledging Hawaii’s substantial interest in protecting
and promoting the tourism industry).
That the District’s asserted interests are substantial in the
abstract, however, does not end our inquiry. To satisfy
narrow tailoring, the District must prove the challenged
regulations directly advance its asserted interests. See United
States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (“There must
be a direct causal link between the restriction imposed and the
injury to be prevented.”). “This burden is not satisfied by
mere speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on . . . speech must
demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.”
Edenfield v. Fane, 507 U.S. 761, 770–71 (1993); see also
12
Lederman v. United States, 291 F.3d 36, 44 (D.C. Cir. 2002)
(noting that courts “closely scrutinize challenged speech
restrictions to determine if they indeed promote the
Government’s purposes in more than a speculative way”).
To be sure, the District is not required to produce
empirical data “accompanied by a surfeit of background
information.” See Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 555 (2001). Instead, the Supreme Court has “permitted
litigants to justify speech restrictions by reference to studies
and anecdotes pertaining to different locales altogether, or
even, in a case applying strict scrutiny, to justify restrictions
based solely on history, consensus, and simple common
sense.” Id. That said, the burden remains on the District to
establish the challenged regulations’ efficacy, and a
regulation cannot be sustained “if there is little chance that the
restriction will advance the State’s goal.” Id. at 566.
The District rehearses a plethora of harms it claims to
forestall with the exam requirement: (1) unscrupulous
businesses, Edwards, 943 F. Supp. 2d at 122; (2) tourists
whose welfare is jeopardized by tour guides lacking a
minimal level of competence and knowledge, id.; (3) tour
guides lacking “minimal knowledge about what and where
they are guiding or directing people to,” id.; (4) consumers
unprotected from unknowledgeable, untrustworthy,
unqualified tour guides, id. at 123; (5) tour guides lacking “at
least a minimal grasp of the history and geography of
Washington, D.C.,” id.; (6) visitors vulnerable to “unethical,
or uninformed guides,” id.; (7) tourists treated unfairly or
unsafely, see Appellee’s Br. at 24; (8) tourists who are
“swindled or harassed by charlatans,” see id.; (9) degradation
of the “quality of the consumer’s experience,” see id. at 36;
(10) “tour guides . . . too unserious to be willing to study for a
single exam,” see id.; and (11) tour guides “abandon[ing
13
tourists] in some far-flung spot, or charg[ing] them additional
amounts to take them back,” see id. at 38. Together, these
harms all fall under the banner of the District’s interest in
“maintaining, protecting, and promoting [its] tourism industry
and economy.” See Appellee’s Br. at 19.
Despite the District’s seemingly talismanic reliance on
these asserted problems, the record contains no evidence
ill-informed guides are indeed a problem for the District’s
tourism industry. The only record “evidence” supporting the
District’s beliefs regarding the perils of unlicensed tour
guides is the District’s 30(b)(6) deposition testimony that
guides with criminal convictions might pose a danger, though
no evidence exists they actually have. See J.A. 154. This
will not do. See Turner Broadcasting Sys., Inc. v. FCC, 520
U.S. 180, 196 (“[I]n the realm of First Amendment
questions[,] . . . the [legislature] must base its conclusions
upon substantial evidence.”). The District’s reliance on a
Washington Post article dating from 1927 to justify the exam
requirement is equally underwhelming. See Appellee’s Br. at
4, 19, 46. The article merely establishes that, nearly a
century ago, the newspaper expressed concern about
unscrupulous or fraudulent charitable solicitation and that an
unidentified number of persons said self-styled tour guides
were overly aggressive in soliciting business. Reliance on
decades-old evidence says nothing of the present state of
affairs. Current burdens demand contemporary evidence.
See Shelby Cnty. Ala. v. Holder, 133 S. Ct. 2612, 2627 (2013)
(“[A] statute’s current burdens must be justified by current
needs.”); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 802 (1988) (rejecting the government’s reliance on
antiquated evidence to justify current burdens); Nashville, C.
& St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935) (“A statute
valid when enacted may become invalid by change in the
conditions to which it is applied.”).
14
Nor are the District’s suppositions validated by studies,
anecdotal evidence, history, consensus, or common sense.
The District says “many other cities . . . have concluded that
licensing tour guides is warranted to promote the tourism
industry and protect consumers.” Appellee’s Br. at 46. By
“many,” the District means exactly five.5 Yet, whatever the
value of this evidence, it is diminished to the vanishing point
by the scores of other U.S. cities that have determined
licensing tour guides is not necessary to maintain, protect, or
promote the tourism industry. Said differently, five cities do
not a consensus make. See Edenfield, 507 U.S. at 771
(dismissing as insufficient anecdotal evidence the fact that
Florida was one of four states with similar regulatory
schemes); cf. Appellee’s Br. at 46 (“[L]aws, legislative policy
statements, and case law from other cities with heavy tourist
trades reflect that history, consensus, and common sense
justify protecting the District’s tourists from unscrupulous,
unlicensed guides.”). Of course, the District need not
demonstrate consensus before relying on evidence from other
locales. See, e.g., City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41, 50–51 (1995) (permitting reliance on the
well-documented, detailed experience and studies of a single
locale). However, an indiscriminate survey of the laws of
5
Although the District’s brief identified five cities with
tour-guide licensing requirements—Charleston, SC; New Orleans,
LA; New York, NY; Savannah, GA; and Philadelphia, PA, see
Appellee’s Br. at 8–10, 24, 27—Philadelphia appears to have
abandoned (at least for the time being) any intention of enforcing
its law. See Tait v. City of Philadelphia, 639 F. Supp. 2d 582,
587–88 (E.D. Pa. 2009) (noting that the city testified it was “not
ready to oversee the application and certification process [for tour
guides] . . . primarily due to a lack of resources”). The actual fifth
city, Williamsburg, Virginia, came to the court’s attention as a
result of Appellants’ candor and due diligence. See Appellants’
Reply Br. at 31 n.6.
15
other jurisdictions without marshaling any evidence about
why those laws were enacted and how the regulations are
enforced is not sufficient. See Edenfield, 507 U.S. at 771
(demanding evidence even when relying on similar legislation
enacted in other locales).
The District can find no refuge in National Association of
Manufacturers v. Taylor, 582 F.3d 1 (D.C. Cir. 2009). There
we upheld the Lobbying Disclosure Act of 1995, which was
enacted because of concerns lobbyists were skirting the
disclosure requirements of the 1946 Federal Regulation of
Lobbying Act. 582 F.3d at 6. The government championed
the law as a public information measure. Id. at 12.
Plaintiffs argued such an “informational interest” must be
validated by “studies, statistics, or empirical evidence
explaining why [they] should be required to file disclosure
statements.” Id. at 15. We disagreed, but did so with the
benefit of a far greater corpus of evidence than the District
presents here.
First, the government’s “vital national interest” in public
disclosure was buttressed by more than fifty years of Supreme
Court precedent. See id at 6 (citing United States v. Harriss,
347 U.S. 612, 625–26 (1954)); Communist Party of U.S. v.
Subversive Activities Control Bd., 367 U.S. 1, 97–100 (1961);
Meese v. Keene, 481 U.S. 465, 485 n.19 (1987); McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 354 n.18 (1995); see
also Citizens United v. FEC, 588 U.S. 310, 369 (2010). The
District points to no such precedent. Second, unlike here, the
statute was bolstered by a legislative record and contemporary
newspaper accounts that precisely explained the existing ills
at which the law was aimed. See Taylor, 582 F.3d at 15 &
n.9. Here, the District offers only speculation and senescent
stories. Lastly, the statute was premised on the notion that
“good government requires greater transparency”—a “value
16
judgment” that was not “susceptible to empirical evidence.”
Id. at 16. Here, the District’s core premise is that tour guides
who have not passed a multiple-choice exam will harm the
tourism economy. See Appellee’s Br. at 19. But this is
exactly the sort of “economic” harm we distinguished in
Taylor as being “susceptible to empirical evidence.” See
Taylor, 582 F.3d at 16.
Indeed, the Supreme Court has demanded evidence for
the existence of harms in other contexts, too. See, e.g.,
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of
Stratton, 536 U.S. 150, 169 (2002) (holding an ordinance
regulating door-to-door solicitation unconstitutional in part
because there was no “evidence of a special crime problem
related to door-to-door solicitation in the record”);
Edenfield, 507 U.S. at 771 (holding as unconstitutional a
statute banning accountants’ in-person solicitation because
there was no evidence solicitation created the “dangers of
fraud, overreaching, or compromised independence that the
[government] claim[ed] to fear”); Riley, 487 U.S. at 790
(rejecting the State’s interest in regulating the fairness of fees
a professional fundraiser may charge charities because there
was no evidence the existing fees were “anything less than
equitable”).
Even if we indulged the District’s apparently active
imagination, the record is equally wanting of evidence the
exam regulation actually furthers the District’s interest in
preventing the stated harms. Curiously, the District trumpets
as a redeeming quality the fact that, once licensed, “[t]our
guides may say whatever they wish about any site, or
anything else for that matter.” Appellee’s Br. at 27 (citing
Kagan v. City of New Orleans, 957 F. Supp. 2d 774, 779
(E.D. La. 2013)). But we are left nonplussed. Exactly how
does a tour guide with carte blanche to—Heaven
17
forfend—call the White House the Washington Monument
further the District’s interest in ensuring a quality consumer
experience?6 Also puzzling is the applicability of the exam
requirement to specialty tour guides, such as those focused on
ghost, food or movie tours.7 A general exam requirement is
ill-suited to ensuring such specialty guides are well informed.
And the existence and persistence of such varied themes
highlights how tourism is as much about entertaining as
educating.
6
We do not mean to suggest the District could somehow police
the accuracy of a tour guide’s speech by, for example, requiring
that tour guides adhere to a script. Even if such speech advanced
the District’s interest in ensuring a quality consumer experience, its
compulsion would doubtless be unconstitutional. See Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61
(2006) (“Some of [the] Court’s leading first Amendment precedents
have established the principle that freedom of speech prohibits the
government from telling people what they must say.”); see also
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 11 (1986)
(“[A]ll speech inherently involves choices of what to say and what
to leave unsaid.”). That a lawyer’s speech is policed for accuracy
via malpractice suits and discipline threats does not compel a
contrary conclusion. Such a distinction serves only to underscore
the vast differences in kind between a professional’s speech and
that of a tour guide’s. See Part II n.3, supra.
7
See, e.g., Ghosts of LaFayette Park, WASHINGTON DC GHOST
TOURS, http://www.dcghosttours.com/ (last visited June 13, 2014);
Experience Culinary DC, DC METRO FOOD TOURS,
http://dcmetrofoodtours.com/ (last visited June 13, 2014); TV and
Movies Sites Tour of Washington DC, TRUSTED TOURS &
ATTRACTIONS, http://www.trustedtours.com/store/tv-and-movie-sit
es-tour-of-washington-dc.aspx (last visited June 13, 2014); see also
J.A. 169, 174.
18
The District also claims the exam requirement furthers its
interests by “‘weeding out tour guides too . . . unserious to be
willing to study for a single exam.’” Appellee’s Br. at 36
(quoting Kagan, 957 F. Supp. 2d at 780). Presumably, the
effort required to study for and pass the exam, along with its
$200 cost, are dispositive factors in winnowing the gamesome
from the genuine. We are not persuaded. Perhaps most
fundamentally, what evidence suggests market forces are an
inadequate defense to seedy, slothful tour guides? To state
the obvious, Segs in the City, like any other company, already
has strong incentives to provide a quality consumer
experience—namely, the desire to stay in business and
maximize a return on its capital investment. Lest there be
any doubt, the sums involved are not insignificant. For
starters, Segs in the City is required to obtain a general
business license. See D.C. CODE § 47-2851.03d. To obtain
a license, Segs in the City must remit $324.50 biennially,
which consists of the following: (1) $200 license fee; (2) $70
application/renewal fee; (3) $25 endorsement fee; and (4)
$29.50 technology fee. See D.C. MUN. REGS. tit. 17, § 500.
Appellants have operated Segs in the City since 2004. 8
What’s more, the least expensive Segway model, the i2, costs
approximately $6,500. 9 Appellants maintain a fleet of at
least eleven Segways. See J.A. 170. And the foregoing
expenditures are to say nothing of the other business-related
8
See SEGS IN THE CITY,
http://www.segsinthecity.com/segsafaris.html (last visited May 22,
2014) (“Segs in the City has been conducting trainings and Segway
Safaris since 2004 and is the most experienced and safest operator
in the area.”).
9
See, e.g., SEGWAY OF ANNAPOLIS,
http://www.segwayofannapolis.com/store/index.php?l=product_det
ail&p=70 (last visited May 22, 2014).
19
expenses, like insurance and maintenance, Appellants must
shoulder. These outlays are not unique to Segs in the City;
they presumably are equally expensive—if not more so—for
tour operators that rely on pedicab, bus, trolley, or boat.
Further incentivizing a quality consumer experience are
the numerous consumer review websites, like Yelp and
TripAdvisor, which provide consumers a forum to rate the
quality of their experiences. One need only peruse such
websites to sample the expressed outrage and contempt that
would likely befall a less than scrupulous tour guide. Put
simply, bad reviews are bad for business. Plainly, then, a
tour operator’s self-interest diminishes—in a much more
direct way than does the exam requirement—the harms the
District merely hypothesizes. See City of Ladue v. Gilleo,
512 U.S. 43, 58 (1994) (observing that “[r]esidents’
self-interest [in maintaining their own property values]
diminishe[d] the danger of the unlimited proliferation of
residential signs” the city feared). That the coal of
self-interest often yields a gem-like consumer experience
should come as no surprise. In his seminal work, The Wealth
of Nations, celebrated economist and philosopher Adam
Smith captured the essence of this timeless principle: “It is
not from the benevolence of the butcher, the brewer or the
baker that we expect our dinner, but from their regard to their
own interest.” ADAM SMITH, AN INQUIRY INTO THE NATURE
AND CAUSES OF THE WEALTH OF NATIONS 12 (Digireads.com
Publishing 2004) (1776).
There is little mystery, therefore, that tour guides possess
every incentive to provide quality tours.10 With this concept
10
Naturally, market forces are but one factor among a group of
relevant considerations when determining the constitutionality of a
government’s regulation. Said differently, the presence of market
20
in mind, what, pray tell, does passing the exam have to do
with regulating unscrupulous tour businesses and unethical
guides? How does memorization of addresses and other,
pettifogging data about the District’s points of interest protect
tourists from being swindled or harassed by charlatans?
Why would a licensed tour guide be any less likely to treat
tourists unfairly and unsafely by abandoning them in some
far-flung spot or charging additional amounts for return
passage?—surely, success on the District’s history exam
cannot be thought to impart both knowledge and virtue. The
District never bothers to engage with these and other basic
inquiries. The questions it does answer, however, serve only
to underscore the substantial mismatch between its stated
objectives and the means chosen to achieve those goals.
During oral argument, the District made several telling
admissions, revealing the scheme’s lack of coherence and
impermissibly underinclusive scope. Two circumstances
render a regulation fatally underinclusive. The first is when
“an exemption from an otherwise permissible regulation of
speech may represent a governmental attempt to give one side
of a debatable public question an advantage in expressing its
views to the people.” Gilleo, 512 U.S. at 51. The other is
triggered where, as here, there is an arbitrary exemption from
forces does not require the District to surrender the tour guide
industry to the free market, though, as a practical matter, nearly
every city in America has so surrendered without any ill effect.
See Part II.A.2 n.3, supra. The District remains free to impose any
number of regulations on the industry including, for example,
limiting the size of a tour group, prohibiting use of amplified
sounds after a certain hour, restricting tours to certain parts of town,
requiring that tours cease after a certain hour, and outlawing
tour-guide solicitation in city streets. An exam requirement does
not materially add to what are already robust consumer protection
measures.
21
or “underinclusiveness of the scheme chosen by the
government [that] may well suggest . . . the asserted interests
either are not pressing or are not the real objects animating
the restriction on speech.” Glickman v. Wileman Bros. &
Elliott, Inc., 521 U.S. 457, 493 (1997).
Here, the District conceded Appellants could, without a
license, lecture at a single point of interest, i.e., stand in front
of the White House and charge tourists a fee to audit the
narration. See Oral Arg. at 15:36–16:09. But under such an
arrangement, what would stop unlicensed tour guides from
stationing themselves at various points of interest throughout
the city and lecturing for a fee? If the stated harms are
genuine, would not such a provision undermine the District’s
interest in promoting the tourism industry? Second, and
equally perplexing, the District acknowledged that, pursuant
to an exemption in the regulations, a tour-bus driver could,
without a license, escort and direct tourists to points of
interest, provided the driver refrained from speaking and
relied exclusively on any audio recording for narration. See
id. at 18:10–18:26. However, no credible attempt was made
to explain how the potentially perverse outcomes would
further the District’s stated interests. When asked, for
example, whether the regulations would permit a tour bus to
recruit a drunk off the street to prerecord the audio narration,
the District unequivocally answered, “yes.” Id. at
23:22–23:58.
Similarly baffling was the District’s wavering agreement
the regulations would permit Appellants to give unlicensed
tours if they also used an audio recording, since clause one11
11
Clause one states unlicensed persons may not “engage[] in the
business of guiding or directing people to any place or point of
interest in the District.” See D.C. MUN. REGS. tit. 19, § 1200.1.
22
of section 1200.1 does not regulate speech. See id. at
24:43–25:21. Myriad inconsistencies abound in that
concession, however. Perhaps most notably, the District had,
just minutes earlier, claimed Appellants could not, unless
licensed, guide and direct tourists to points of interest and,
instead of speaking, distribute pamphlets describing the
various sites. See id. at 16:10–16:43. When pressed on the
obvious incoherence of its admission, the District recanted,
concluding that, although analogous to a tour bus, clause
two12 of section 1200.1 prohibited Appellants from using an
audio recording. See id. at 27:56–28:25. In no event,
however, did the District offer a rational explanation for the
tour-bus exemption.13 The District’s failure to provide any
justification—let alone a persuasive one—for the glaring
inconsistency, effectively eviscerated what was left of the
12
Clause two provides that unlicensed persons may not, “in
connection with any sightseeing trip or tour, describe[], explain[],
or lecture[] concerning any place or point of interest in the District
to any person.” See D.C. MUN. REGS. tit. 19, § 1200.1 In its
brief, the District argued Appellants lacked standing to challenge
clause two of section 1200.1 because they “would be covered by
the first clause since they are engaged in the business of guiding or
directing people in the District regardless of any describing,
explaining, or lecturing.” Appellee’s Br. at 18. Given the
District’s admission that clause two is controlling, however, it is
unclear whether they continue to dispute Appellants’ standing.
13
Indeed, we doubt any rational basis for the exemption exists.
Of the five jurisdictions requiring a tour-guide license, the District
alone has the dubious distinction of exempting tour buses that rely
on audio recordings. See Charleston, SC (Charleston Code §
29-58; § 29-2); New Orleans, LA (New Orleans Code § 30-1486);
New York, NY (N.Y. Admin. § 20-247); Savannah, GA (Savannah
Code § 6-1508); and Williamsburg, VA (Williamsburg Code §
9-331).
23
regulations’ waning credibility. See id. at 28:28–29:03.
Why the regulations would permit a drunk’s pre-recorded
narration on a tour bus, but proscribe the same conduct on a
Segway, remains an enigma. What the foregoing makes
plain, however, is that the tour-bus exemption is arbitrary and
renders the regulations impermissibly underinclusive.
Underinclusiveness is not the only way in which the
regulations fail to pass constitutional muster. If, as we
assume, the regulations are understood primarily as a
restriction on conduct with only an incidental effect on
speech, they also are overbroad. This is because clause two
of section 1200.1 would forbid an unlicensed person from
lecturing to a tour group, even if that group is being escorted
by a fully licensed guide. See J.A. 156 (“[I]f there’s a tour
that is both led by licensed sightseeing guide and features
commentary during the tour from an unlicensed individual
who’s describing, explaining or lecturing about the sights in
Washington, D.C., that tour is operating in violation of the
law.”).
Also fatal to the District’s regulatory scheme is the
existence of less restrictive means to accomplish its interests.
Of course, the means chosen “need not be the least restrictive
or least intrusive.” See Ward, 491 U.S. at 798. “Rather, the
requirement of narrow tailoring is satisfied so long as the
regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.” Id.
at 799. “We must therefore ask whether it is possible
substantially to achieve the Government’s objective in less
burdensome ways” than the exam requirement. See Alvarez,
132 S. Ct. at 2555 (Breyer, J., concurring). We conclude the
answer to this question is “yes.”
24
In contrast with the harms the District says its regulations
prevent, proposing less restrictive means to achieve its
objectives requires no creativity. For example, nowhere in
the record is there any evidence unscrupulous businesses,
which engage in unfair or unsafe practices, could not be more
effectively controlled by regulations that punish fraud or
restrict the manner in which tour guides may solicit business.
Likewise, no reason is offered why the threat of directionally
challenged tour guides would not be better resolved by
regulations requiring that tour guides carry a map or other
navigational aid. Additionally, nowhere in the record is there
anything to suggest a voluntary certification program—under
which guides who take and pass the District’s preferred exam
can advertise as “city-certified guides”—would diminish the
quality of the consumer’s experience. In sum, the District
has provided no convincing explanation as to why a more
finely tailored regulatory scheme would not work.
****
The District failed to present any evidence the problems
it sought to thwart actually exist. Even assuming those
harms are real, there is no evidence the exam requirement is
an appropriately tailored antidote. Moreover, the District
provided no explanation for abjuring the less restrictive but
more effective means of accomplishing its objectives.
Because this lack of narrow tailoring is hardly unique to
Appellants, we sustain both their facial and as-applied
challenges to the offending regulations.14 The district court’s
14
Having found the District’s regulations unconstitutional due to
lack of narrow tailoring, we need not consider whether the
regulations permit ample alternative channels of communication.
See Turner, 893 F.2d at 1392.
25
grant of summary judgment in favor of the District is,
therefore, reversed, and we remand the case with instructions
to grant Appellants’ motion for summary judgment.15
So ordered.
15
We are of course aware of the Fifth Circuit’s contrary
conclusion in Kagan v. New Orleans, No. 13-30801, 2014 WL
2460495 (5th Cir. June 2, 2014), which affirmed the
constitutionality of a similar tour guide licensing scheme. We
decline to follow that decision, however, because the opinion either
did not discuss, or gave cursory treatment to, significant legal
issues. See Burka v. U.S. Dep’t of Health & Human Servs., 142
F.3d 1286, 1290 (D.C. Cir. 1998) (finding as unpersuasive and
declining to follow a Fifth Circuit opinion that neglected to discuss
or mention binding, Supreme Court precedent); Potomac Elec.
Power Co. v. Dir., Office of Workers’ Comp. Programs, 606 F.2d
1324, 1329 (D.C. Cir. 1979) (declining to follow Fifth Circuit
because “it did not discuss [an] issue in its brief opinion affirming
[the district court]”).