(CN) - Requiring sightseeing guides to pass a licensing exam before they may give tours in Washington is too inconsistent to survive a First Amendment challenge, the D.C. Circuit ruled.
"This case is about speech and whether the government's regulations actually accomplish their intended purpose," Judge Janice Brown wrote for a three-member panel Friday. "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." (Emphasis in original.)
The D.C. regulations in question require sightseeing tour guides to each pay $200 and take a 100-question exam involving general knowledge of the nation's capital. Those convicted of conducting tours without a license are subject to a fine of up to $300 and a maximum of three months in jail.
Tonia Edwards and Bill Marin, the owners of guided-tour business Segs in the City, claimed in a 2010 action
that the regulations unfairly burden them and the college students they hire every summer, in restricting what they can say about the city.
Clients of Segs in the City rent Segways to roam D.C., Annapolis, Baltimore and Maryland, listening as their guides describe points of interest and answer questions via radio earpiece.
Shooting those claims down last year, a federal judge found
that the requirement regulates conduct - the guiding of a sightseeing tour - rather than speech.
But the D.C. Circuit reversed the decision last week, finding no compelling government interest in protecting consumers from unqualified tour guides.
"There is little mystery, therefore, that tour guides possess every incentive to provide quality tours," Judge Brown wrote, citing the prevalence of consumer-reporting websites, plus Segs in the City's operational costs. "With this concept 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." (Emphasis in original.)
The court also found it "puzzling" to enforce testing requirements on specialty tour groups, such as those that focus on ghosts or movies.
"Similarly baffling" was the district's agreement that a tour bus could bypass the exam requirement by recruiting "a drunk off the street" to prerecord an audio tape.
"The district unequivocally answered, 'yes,'" when given this scenario, according to the ruling.
Other inconsistencies abound, the court found.
"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," Brown said. "The district's failure to provide any justification - let alone a persuasive one - for the glaring inconsistency, effectively eviscerated what was left of the regulations' waning credibility. 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."