A federal judge struck down the laws governing who can give paid tours in Charleston on Friday, ruling that the laws violate tour guides’ First Amendment rights and that the city did not even try less restrictive regulatory alternatives.

Under current law, tour guide hopefuls must get a business license, pay $50 for two chances at a 200-question test, and score at least a “C” to be legally allowed to talk about the Holy City for hire.

The questions are based on a 492-page manual written by the Historic Charleston Foundation.

With help from the libertarian Institute for Justice, the lawsuit was filed in January 2016 by Kimberly Billups, Michael Warfield, and Michael Nolan, all of whom have failed the city’s 200-question written exam at one point or another.

Billups and Warfield eventually got their tour guide licenses after the city did away with an oral exam requirement and dropped the passing score from 80 percent to 70 percent three months after the suit was filed.

“The licensing law imposes real burdens on those hoping to be tour guides in
Charleston,” wrote U.S. District Judge David Norton in Friday’s order. “The law applies to all tour guides who wish to give paid tours within Charleston’s historical district, a lucrative profession in a city where tourism is the most profitable industry. But the record demonstrates that the city never investigated or tried to use any less speech-restrictive alternatives.”

Tour guides will still be required to get a business license.

Norton heard four days of arguments from April 9–12. Interestingly, he seemed conflicted with his own decision.

He echoed the words used by U.S. Supreme Court Justice Elena Kagan in her dissent on Janus v. AFSCME, an anti-union decision handed down in June. In that case, the Court ruled that requiring non-union members to pay agency fees violated their First Amendment rights, given that unions often participate in political speech that may differ from that of non-members (though they may benefit from a union’s collective bargaining efforts anyway).

Critics say that the ruling will cost labor unions, already in decline across the country, tens of million of dollars that helped them avoid “free riders.”

Justice Kagan, referred to “black-robed rulers overriding citizens’ choices” in the nation’s courts. “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance,” Kagan wrote.

“It saddens the court to be one of those ‘black-robed rulers overriding
citizens’ choices,'” Norton confessed in the final footnote of his Charleston tour guide order. “And it agrees that the First Amendment was ‘meant for better things.'”

Former Charleston Mayor Joe Riley, whose letter opens the tour guide manual, testified that a deceptive solicitation ordinance, like the one against pesky “vacation time share” peddlers, would not be as effective in preventing unqualified guides from giving tours because disappointed tourists aren’t likely to “follow up.”

“Instead, Mayor Riley speculated those tourists will ‘go home and tell people you got ripped off in Charleston,'” according to court documents.

Livability and Tourism Director Dan Riccio also warned against relying solely on business licenses to ensure the quality of tour guides, arguing that when those licenses are revoked, they can be regained under different LLCs.

“As a result of the judge’s ruling and judgment in plaintiffs’ favor, effective today the city will cease enforcement of its tour guide licensing requirements,” said city attorney Carol Ervin in a statement released Monday afternoon. “The city is disappointed with this result and plans to ask the Court to reconsider the ruling, and may appeal to the U.S. Fourth Circuit Court of Appeals if necessary.”

Bill Harris, a historical tour guide with Oyster Point Walking Tours, was happy to hear that this “cut and dry issue” had been resolved on Friday.

“I think that the city trying to regulate speech in public places is over the line,” he said.

Harris supports a voluntary certification program that would act as a seal of approval from the city. He hopes that the new ruling will give the city a chance to come up with a test that includes more African-American and women’s history.

“I can tell you with authority, having done this over the past four-and-a-half years, I routinely hear people falsely misrepresent data all the time,” Harris said.

One of the most common (and perhaps ridiculous) examples? The assertion that a house on Church Street near St. Philip’s Episcopal Church with an anchor affixed to the outside was “Blackbeard’s favorite brothel,” he says.

“First of all, there’s no evidence he ever stepped foot in South Carolina,” Harris said. “That kind of silly sensationalism happens a lot.” [pdf-1]

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