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D.C. Tour Guide Requirements Struck Down on First Amendment Grounds

By Gabriella Khorasanee, JD on June 30, 2014 | Last updated on March 21, 2019

The District of Columbia, like other tourist-destination cities like New York and New Orleans, has professional requirements for tour guides to operate tours in the city, according to The Associated Press. Last week, the D.C. Court of Appeals struck down the requirements as unconstitutional, for violating the First Amendment, reports The Wall Street Journal.

So, basically, now tour guides can say whatever they want -- with no way to determine whether information is accurate.

D.C. Tour Guide Requirements

The D.C. tour guide requirements, in a nutshell, require prospective tour guides operating tours in the city to pay a fee of $200 and take a 100-question exam. To pass, a prospective tour guide must receive a passing grade of 70, or higher. Owners of "Segs in the City," ("Owners") a segway tour company, sued the District claiming that the requirements violated their First Amendment rights of free speech. A district court denied their request for a preliminary injunction, and after limited discovery, granted the District's motion for summary judgment.

D.C. Circuit Decision

On appeal, the Owners argued that the tour guide requirements were a content-based restriction, and even if content neutral, the District provided insufficient evidence to show that the regulations actually addressed the actual problem. The court assumed arguendo the district court's argument that the requirements were content-neutral. Even so, it found that "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." Interestingly, the court brought up consumer review websites such as TripAdvisor and Yelp, as corrective means by which bad tours would be weeded out.

Circuit Split

The court brushed off a Fifth Circuit decision upholding a tour guide licensing scheme in a footnote, and merely noted that the Fifth Circuit's "opinion either did not discuss, or gave cursory treatment to, significant legal issues." Noting other cities that had such requirements (Charleston, S.C., New York, New Orleans, Philadelphia and Savanna, Ga.), the court was not impressed and simply said, "five cities do not a consensus make."

We're not sure if this range of disagreement on this burning questions rises to the level needed for Supreme Court review. No word yet on whether the District will appeal.

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