Billups et al v. Charleston, City of
Filing
79
ORDER denying 39 Motion for Summary Judgment; denying 40 Motion for Summary Judgment; granting in part and denying in part 52 Motion to strike. Signed by Honorable David C Norton on September 25, 2017.(span, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KIMBERLY BILLUPS, MICHAEL
WARFIELD, and MICHAEL NOLAN,
)
)
)
Plaintiffs,
)
)
vs.
)
)
CITY OF CHARLESTON,
)
SOUTH CAROLINA,
)
)
Defendant.
)
______________________________________ )
Civil No. 2:16-cv-00264-DCN
ORDER
This matter is before the court on plaintiffs Kimberly Billups, Michael
Warfield and Michael Nolan’s (collectively, “plaintiffs”) and defendant City of
Charleston’s (the “City”) cross-motions for summary judgment, as well as the City’s
motion to strike plaintiff’s Statement of Undisputed Material Facts (“SUMF”). For
the following reasons, the court denies both motions for summary judgment and
grants in part and denies in part the motion to strike. 1
I. BACKGROUND
This dispute arises out of a First Amendment challenge to the City’s
regulation of tour guides. The city of Charleston, South Carolina draws millions of
visitors every year and has developed a reputation for being one of the top tourist
1
The court has already granted the City’s request to file additional briefing to
address the purportedly facts contained in the SUMF. Any request for further relief is
denied. The court acknowledges the City’s consternation with the plaintiffs’
submission of the SUMF without seeking consent from the City or leave from the
court. While the court ultimately considered the SUMF in rendering its decisions, it
reminds plaintiffs of the need to conform to this district’s local rules.
1
destinations in the world. ECF No. 43-2, Riley Aff. ¶ 3. Given the size and
significance of the local tourism industry, the City has long regulated the industry in a
number of ways. Id. ¶¶ 4–5. Pursuant to Charleston City Code § 29-58, the City
currently prohibits any person from “act[ing] or offer[ing] to act as a tour guide in the
city for hire unless he or she has first passed a written examination and is licensed by
the [City].” A “tour guide” is defined as a “person who acts or offers to act as a guide
for hire through any part of” certain regulated areas of the city. Charleston City Code
§ 29-2. The City defines a “tour or touring” as “the conducting of or the participation
in sightseeing . . . for hire or in combination with a request for donations.” Id.
In April of 2016—following the filing of this lawsuit, the City amended the
requirements for obtaining a tour guide license. As the regulations currently stand,
the City requires prospective tour guides to pass the aforementioned written
examination and obtain a valid business license before qualifying for a tour guide
license. Id. The written examination is designed to “test the applicant’s knowledge
of the city and its history,” Charleston City Code § 29-59(b), and consists of 200
questions drawn from information provided in the Charleston Tour Guide Training
Manual (the “Manual”), a 490-page study guide detailing various historical,
architectural, cultural, and other information. ECF No. 50-11, Manual Excerpts at 5,
6 (table of contents). The stated purpose of the Manual “is to provide a wealth of
knowledge for prospective and current licensed tour guides” and to further “the city’s
goal [of] provid[ing] accurate, factual and updated information to its visitors and
residents.” Id. at 482. A prospective tour guide must correctly answer 70 percent of
2
the exam questions to pass. 2 Charleston City Code § 29-59(f). Once licensed, tour
guides are required to attend four continuing education lectures every three years in
order to extend the term of their license. Charleston City Code § 29-63. Otherwise,
the license will lapse, and the tour guide will be required to retake the written
examination. 3 Id.
Prior to the recent amendments, the City also required prospective tour guides
to pass an oral examination, wherein candidates would “act as a guide” in front of
City officials and who would evaluate the candidates’ performance on a “pass or fail
basis.” ECF No. 39-2, Maybank Dep. 107:10–13; see also Ordinance § 3 (striking
provisions requiring oral examination). The oral exam tested both the accuracy and
completeness of a prospective tour guide’s performance, meaning that a prospective
tour guide might fail the oral exam due to their failure to mention certain facts
relevant to the tested area. ECF No. 48-10, Mendelsohn Dep. 47:3–47:25. The preamendment Code also allowed individuals to act as “temporary tour guides” under
certain conditions. Charleston City Code § 29-60 (2016). “Temporary tour guides”
were not required to pass the written examination described above, but were required
to adhere to a script approved by the City. Id. § 29-60(e), (g). The City required the
2
Prior to the recent amendments, prospective tour guides were required to
correctly answer 80 percent of the exam questions to pass. Compl. ¶ 17. The recent
amendments make the reduced 70 percent threshold retroactive to April 26, 2015.
ECF No. 26-1, Ordinance § 10.
3
After maintaining a valid license for a period of 25 years, a tour guide
obtains the status of “tour guide emeritus” and is relieved of any continuing education
or testing requirements. Charleston City Code § 29-63.
3
information contained in the approved scripts to be consistent with the Manual. ECF
No. 49-6, Tourism Commission Meeting Minutes 10/22/97 at 2.
Plaintiffs are individuals who wish to work as tour guides in Charleston, but
failed to meet the 80 percent threshold required to pass the written licensing exam
when they each took it in 2015. Compl. ¶¶ 38, 52–55, 68. Plaintiffs Kimberly
Billups and Michael Warfield each scored over the current 70 percent threshold in
November 2015 and August 2015, respectively. Id. ¶¶ 38, 53. Pursuant to the
retroactive application of the new 70 percent threshold, Billups and Warfield are now
working as licensed tour guides, although they remain subject to the City’s continuing
education requirements. Charleston City Code § 29-63. Plaintiff Michael Nolan still
has not passed the written examination and remains ineligible for a tour guide license.
On January 28, 2016, plaintiffs filed a complaint alleging that the City’s tour
guide license requirement violates the First Amendment of the United States
Constitution. Compl. ¶¶ 103–06. Plaintiffs moved for a preliminary injunction and
the City moved to dismiss the complaint. The court denied both motions on July 1,
2016 (the “2016 Order”). ECF No. 27. On January 27, 2017, the parties each filed
motions for summary judgment. ECF Nos. 39, 40. On February 1, 2017, the City
filed its motion to strike plaintiffs’ SUMF. ECF No. 52. Plaintiffs filed a response to
the motion to strike on February 3, 2017, ECF No. 53, and the City filed a reply on
February 9, 2017. ECF No. 56. The parties then filed responses in opposition to the
summary judgment motions on February 24, 2017. ECF Nos. 61, 62. The parties
filed their replies on March 17, 2017. ECF Nos. 65, 66. The court held a hearing on
April 6, 2017. On April 21, 2017, the City filed a sur-reply to address the arguments
4
contained in plaintiffs’ SUMF. ECF No. 72. The matter is now ripe for the court’s
review.
II. STANDARD
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Rule 56(c) of the Federal Rules of Civil
Procedure requires that the district court enter judgment against a party who, ‘after
adequate time for discovery . . . fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190
(4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any
reasonable inferences are to be drawn in favor of the nonmoving party. See Webster
v. U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat
summary judgment, the nonmoving party must identify an error of law or a genuine
issue of disputed material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc.,
346 F.3d 514, 522 (4th Cir. 2003).
Although the court must draw all justifiable inferences in favor of the
nonmoving party, the nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference upon another, or the mere
existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d
at 191. Rather, “a party opposing a properly supported motion for summary
judgment . . . must ‘set forth specific facts showing that there is a genuine issue for
5
trial.’” Bouchat, 346 F.3d at 522 (quoting Fed. R. Civ. P. 56(e) (2002) (amended
2010)). If the adverse party fails to provide evidence establishing that the factfinder
could reasonably decide in his favor, then summary judgment shall be entered
“regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive
law.’” Id. (quoting Anderson, 477 U.S. at 248).
“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Id. at 249. When the party moving for summary
judgment does not bear the ultimate burden of persuasion at trial, it may discharge its
burden by demonstrating to the court that there is an absence of evidence to support
the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then “make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322.
III. DISCUSSION
The flashpoints of this litigation at the summary judgment stage are much the
same as they were at the preliminary injunction stage. Plaintiffs argue that the City’s
licensing law should be subject to strict scrutiny because it is a content-based
regulation of speech, while the City contends that the law is content-neutral, and
therefore, subject to only intermediate scrutiny. 4 Plaintiffs further argue that, even if
4
The City does appear to have abandoned its argument that the law does not
regulate speech at all, and is therefore not subject to any First Amendment scrutiny at
all.
6
the law is deemed to be content-neutral, it fails under intermediate scrutiny. The
City, of course, disagrees.
Thus, the court must revisit many of the same issues addressed in its 2016
July 1, 2016 order denying plaintiffs’ motion for a preliminary injunction (the “2016
Order”). 5 While the parties have provided fairly lengthy briefs and an extensive array
of exhibits to support their arguments, the court finds that neither of the major
issues—the appropriate level of scrutiny and whether the City’s licensing scheme
passes that level of scrutiny—can be resolved at the summary judgment stage.
A.
Appropriate Level of Scrutiny
“The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’”
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015) (quoting U.S. Const.,
Amdt. 1). The animating purpose behind the First Amendment “lies [in] the principle
that each person should decide for himself or herself the ideas and beliefs deserving
of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. F.C.C., 512
U.S. 622, 641 (1994). Thus, “a government, including a municipal government
vested with state authority, ‘has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.’” Reed, 135 S. Ct. at 2226
(quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based
laws—those that target speech based on its communicative content—are
5
The court notes that the parties have not challenged most of the legal
standards and conclusions outlined in the court’s 2016 Order. Therefore, much of
this order is drawn from that decision.
7
presumptively unconstitutional and may be justified only if the government proves
that they are narrowly tailored to serve compelling state interests.” Id. “In contrast,
[laws] that are unrelated to the content of speech are subject to an intermediate level
of scrutiny, [] because in most cases they pose a less substantial risk of excising
certain ideas or viewpoints from the public dialogue.” Turner Broad. Sys., 512 U.S.
at 642 (citing Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293
(1984)). A law may be content-based in two ways: it may be content-based “on its
face,” or it may rely on a content-based “purpose and justification.” Reed, 135 S. Ct.
at 2228.
Plaintiffs argue that the licensing statute is both facially content-based, and
dependent on a content-based justification. Pls.’ Mot. 22–32.
1.
Content-Based on its Face
Plaintiffs argue that the licensing law is content-based on its face because it is
triggered by speech communicating a particular message. Id. at 17. “Government
regulation of speech is content based if a law applies to particular speech because of
the topic discussed or the idea or message expressed.” Reed, 135 S. Ct. at 2227.
Whether a regulation is content-based “on its face” must be judged by the “plain
terms of the regulation.” Satellite Broad. And Commc’ns Ass’n v. F.C.C., 275 F.3d
337, 353–54 (4th Cir. 2001) (quoting Chesapeake and Potomac Tel. Co. of Va. v.
United States, 42 F.3d 181, 193 (4th Cir.1994), vacated on other grounds, 516 U.S.
415 (1996)). The Supreme Court has explained that while “[s]ome facial distinctions
based on a message are obvious, . . . others are more subtle, [such as] defining
regulated speech by its function or purpose.” Reed, 135 S. Ct. at 2227. Examples of
8
functional or purpose-based categories of speech include “marketing” speech, see
Sorrell, 131 S. Ct. at 2663 (“The statute thus disfavors marketing, that is, speech with
a particular content.”), speech “directing the public to church,” Reed, 135 S. Ct. at
2227, and speech “designed to influence the outcome of an election.” Id.
At the preliminary injunction stage, the court analyzed the plain language of
the licensing law and determined that it was not content-based on its face. 2016
Order at 14–16. As the court explained:
[I]t is very difficult to functionally define the speech required to perform
“tour guide services” or “act[ ] as a guide” without circularly referring
to speech made in the course of such conduct. . . . The most that can be
said is that acting as a tour guide requires one to speak with the function
or purpose of acting as a tour guide. Whatever the Court intended when
it held that a law may be content-based if it facially distinguishes
between categories of speech defined by their “function or purpose,”
Reed, 135 S.Ct. at 2227, it cannot have meant that every law restricting
conduct also imposes a content-based restriction on speech made in the
course of such conduct. This rationale would effectively remove the
distinction between speech and conduct, and require almost every
regulation to pass strict scrutiny under the First Amendment.
Id. at 14–15.
Plaintiffs argue that discovery has clarified what it means to provide “tour
guide services” and “act[] as a guide,” within the meaning of the licensing law,
highlighting evidence that the City’s interpreted those terms to refer to speech
discussing the various points of interest along a tour route. For instance, plaintiffs
point out that the City’s Corporation Counsel described the definition of touring as
“giving different pointers as to what buildings were of historic significance” at a
meeting of the City’s Tourism Commission. ECF No. 47-7, Tourism Commission
Meeting Minutes 10/22/97 at 1–2. Mayor John Tecklenburg, who testified as a
9
30(b)(6) witness, similarly defined “giving [a] tour” as “being paid for hire to
expound of the history of our city.” ECF No. 47-2, Tecklenburg Dep. 31:5–8.
Longtime Charleston Mayor Joe Riley, who testified as a 30(b)(6) witness, indicating
that the law would not apply to the driver of a vehicle who plays a recording of a
licensed tour guide talking about Charleston, suggesting that the law only applies
when the person guiding the customer through the city actually discusses points of
interest around Charleston. ECF No. 47-1, Riley Dep. 57:12–22. 6 Indeed, it appears
that this hypothetical is grounded in actual events, as licensed tour guide Thomas
Dew (“Dew”) testified that the City was prepared to install iPads loaded with a
touring app in buses and rickshaws, allowing passengers to access “tour content”
without requiring the drivers to obtain tour guide licenses. ECF No. 50-5, Dew Dep.
61:10–14.
All of this evidence suggests that the City considered “acting as a tour guide”
to mean providing information about various sites and locations along a tour route.
This would seem to be a functionally defined category of speech. See Reed, 135 S.
6
The court notes that it is not entirely clear that Mayor Riley actually settled
on this position. After the cited exchange, plaintiffs’ counsel continued to discuss the
hypothetical and Mayor Riley responded that
If you hired a driver to drive you around town and you pay them to give
you information about the city, then they should have a license because
you’re paying them to be -- you’re paying them for the services of a tour
guide, but they don’t have a cassette -- a cassette is not -- I mean, holding
a law book and you didn’t pass the Bar exam doesn’t mean somebody
should pay you to represent them in court.
Riley Dep. 58:5–13. This response seems to indicate that if a driver was hired to
“give [] information about the city,” then the driver would not be able to avoid the
licensing requirement by simply playing a tape.
10
Ct. at 2227 (finding law that regulated particular topics or functions of signs to be
content-based). However, the problem with this argument is none of it comes from
the plain language of the Charleston City Code. Instead, the evidence all relates to
the City’s interpretation and enforcement of its licensing law, which is undoubtedly
relevant in assessing the law’s underlying “purpose or justification,” but seems
decidedly irrelevant in assessing the meaning of the statute “on its face.” Plaintiffs
have not explained how the City’s intended meaning of the licensing law can be
considered at this stage, and Fourth Circuit precedent indicates otherwise.
Therefore, the court finds that the licensing law is not content-based on its
face.
2.
Content-Based Purpose or Justification
Even if a regulation is not content-based on its face, it may nevertheless be
content-based if it was imposed with a content-based purpose or justification. Sorrell,
131 S. Ct. at 2664 (“Even if the hypothetical measure on its face appeared neutral as
to content and speaker, its purpose to suppress speech and its unjustified burdens on
expression would render it unconstitutional”). Where a regulation in facially contentneutral, “[t]he principal inquiry . . . is whether the government has adopted a
regulation of speech because of disagreement with the message it conveys.” Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). As the court explained at the
preliminary injunction stage, in determining whether a regulation was imposed with a
content-based purpose or justification, “the court may consider formal legislative
findings, the statute’s stated purposes, as well as the ‘inevitable effect’ of the statute.”
2016 Order at 16 (quoting Sorrell, 131 S. Ct. at 2664). The City appears to have
11
taken this statement to mean that the court can only consider these three factors.
Def.’s Resp. 10. However, the court takes this opportunity to clarify that the inquiry
is not so limited. While the three factors that the City focuses on were particularly
significant to the analysis at the preliminary injunction stage, the Supreme Court has
considered other factors, including the manner in which the government applies or
enforces the regulation. 7 See Ward, 491 U.S. at 792–93 (finding regulation requiring
performers to use the city’s sound technician was not content-based because “the city
requires its sound technician to defer to the wishes of event sponsors concerning
sound mix”).
Here, there is certainly evidence that the licensing law was designed with a
content-based purpose in mind—namely, to promote the City’s version of its history.
This purpose can be inferred from design of the licensing scheme, which requires
prospective tour guides to master certain historical, cultural, and architectural subjects
before obtaining a license. Such a requirement tends to promote prospective tour
guides who focus on those subjects, while discouraging tours focused on other
subjects. Moreover, the plaintiffs have identified a fair amount of evidence that the
City has an interest in what tour guides were telling their customers about the sites
they visited along their tours—particularly with respect to the history of those
locations. See Tourism Commission Meeting Minutes 10/22/97 at 1–2 (indicating
that the licensing requirement would only apply to persons “giving different pointers
7
Lest there be another misunderstanding, the court has not attempted to
identify every possible factor a court may consider in determining whether a statute is
reliant on a content-based purpose or justification.
12
as to what buildings were of historic significance”); see also Tecklenburg Dep. 31:5–
8 (defining “giving [a] tour” as “being paid for hire to expound of the history of our
city”). In addition to the evidence identified in the previous section, plaintiffs cite
Mayor Riley’s testimony that the purpose of the licensing exam is to
protect the quality and integrity of this special, unique American city
and ensure that those who pay money to a licensed tour guide have
somebody that is knowledgeable of the city, that can also answer their
questions about the architecture and history of the City of Charleston
with reasonable knowledge and accuracy.
Riley Dep. 122:23–123:5. Rhetta Mendelsohn (“Mendelsohn”), who helped write the
Manual and Tourism Commission for a period of time, provided similar testimony.
See ECF No. 48-1, Mendelsohn Dep. 61:11–14 (stating that the examination
requirement provides proof that the “guides have a basic knowledge of what they
should be talking about in the city, what they should be telling people, what people
should be getting”). The Manual itself indicates that tour guides “serve as the city’s
ambassadors” and that their “knowledge” is “representative” of the city. Manual
Excerpts at 482. Plaintiffs argue that these statements reveal a content-based purpose
because they prove that the City wants tour guides to provide certain information to
visitors when asked about certain topics. Pls.’ Mot. 27.
Plaintiffs also highlight more indirect evidence of the City’s intent, including
the recent repeal of the oral examination requirement and temporary tour guide
provisions, which allowed the City to evaluate the actual content of a prospective tour
guide’s presentation. Though these provisions are no longer in effect, plaintiffs
contend that they still provide evidence of the City’s original purpose—controlling
the content of information provided on tours. Pls.’ Mot. 23–24. Finally, plaintiffs
13
point out several other actions taken by City officials exhibited that, in plaintiffs’
view, demonstrate the City’s interest in the content of the information conveyed by
tour guides. For example, the City published a document entitled “Information for
New Tour Guides,” which stated that tour guides were “responsible [for saying], ‘the
legend is,’ or ‘tradition says’ . . . etc. when sharing information that is not factual,”
and requesting that tour guides not make up answers to questions they did not know.
ECF No. 49-8, Information for New Tour Guides; see also Maybank Dep. 127:22–
129:25 (discussing memo sent to carriage operators requesting that they “adhere to
information in the [Manual]” and the City’s practice of “following up” when
informed that a tour guide provided false information).
Taken together, this evidence would be enough for a reasonable trier of fact to
find that the City’s underlying motive was to influence the information provided by
Charleston’s tour guides and promote the City’s preferred viewpoint or content.
Thus, the City’s motion for summary judgment could be denied before the court even
reaches the intermediate scrutiny analysis. 8
However, this is not the only conclusion a reasonable trier of fact could reach.
The City argues that it was never concerned with the content of the tour guides
speech for content’s sake, but instead, it was only concerned with prohibiting tour
guides from deceiving their customers by distributing inaccurate information. Def.’s
Resp. 10. The City cites some of the same testimony cited by the plaintiffs in support
8
The City has not attempted to show that the licensing law could survive strict
scrutiny, therefore, the court assumes if strict scrutiny applies, the plaintiffs must
prevail.
14
of this argument. For example, the City points out that when Mendelsohn’s
testimony is read in full, it indicates that the intended function of the licensing
examination was to “ensure that people have a basic knowledge that they need to
conduct business in the city, trying to ensure that people get their money’s worth and
that the guides are following the laws of the city.” Mendelson Dep. 61:11–19.
Mayor Riley echoed this view:
The benefit of the exam or benefit of having a licensing requirement for
tour guides in the City of Charleston is that you prevent the five million
visitors who come here from being scammed by people who don’t know
anything about the city’s history with any kind of depth and knowledge
and take their money, and also then have people that could be out there
dressed or acting like they're tour guides that want to do something
untoward.
Riley Dep. 123:16–25.
The City has also provided evidence that it designed the exam and continuing
education requirements to address topics that tour guide customers are most interested
in. See ECF No. 43-1, Charleston Visitor Survey Report at Bates No. 003527
(concluding that “the Charleston area’s history and historic attractions have remained
and will presumably continue to be the most important factor in visitors’ decision to
visit Charleston”); Maybank Dep. 130:17–24 (explaining that the City attempts to
tailor continuing education courses to issues that visitors mention they wish they had
learned more about). This evidence suggests that the City’s regulation is not designed
to advance the City’s own content preferences because it “[takes] the desires of
tourism industry participants as its starting point.” 2016 Order at 19. The City also
points out that the licensing law did not provide any mechanism for the City to either
monitor or punish deviations from the Manual. Though the City certainly asked tour
15
guides to provide accurate information, this does not necessarily mean the City
wanted to stifle any particular viewpoint or content-based category of speech.
Finally, as to the 2016 amendments to the City Code that removed the oral
examination requirement and the temporary tour guide license provision, Mayor
Tecklenburg has testified that he had concerns about the tour guide licensing
regulations during his mayoral campaign in 2015. Tecklenburg Dep. 17:12–18:21. It
should be noted that Mayor Tecklenburg did not testify that he had concerns about
those specific provisions before he took office. However, he did explain that one of
his concerns was that the exam needed to be offered more frequently, and that once
this was accomplished, the temporary tour guide provision was unnecessary. Id. at
18:20–21, 22:3–9.
When this evidence is viewed in the light most favorable to the City, a
reasonable trier of fact could find that the City’s true motive was to ensure that tour
guide customers received the product the benefit of their bargain. Plaintiffs argue that
even if the City’s evidence is to be believed, this motive is not content-neutral
because it still implicates the content of tour guides’ speech. Pls.’ Reply 6. This
makes some intuitive sense. The City can hardly deny that the licensing law focuses
on the content of the tour guides’ speech, even if this focus is only a means to a
content-neutral end. However, a close examination of the Supreme Court’s decisions
in Reed and Ward reveals that a facially content neutral regulation may impact the
content of speech and still avoid strict scrutiny, so long as the government’s ultimate
purpose is content-neutral.
16
In Reed the Supreme Court found that the Court of Appeals erred in finding
that a town’s sign regulations “[were] content neutral because the Town ‘did not
adopt its regulation of speech [based on] disagree[ment] with the message conveyed,’
and its justifications for regulating temporary directional signs were ‘unrelated to the
content of the sign.’” Reed, 135 S. Ct. at 2227 (alterations in original) (quoting Reed
v. Town of Gilbert, Ariz., 707 F.3d 1057, 1071–72 (9th Cir. 2013)). The Court
explained that this was based on the Court of Appeals misunderstanding of its prior
decision in Ward, which dealt with a “facially content-neutral” regulation. Id. at 2228
(emphasis added). This distinction was crucial because the regulations at issue in
Reed were deemed to facially content-based. Id. However, in distinguishing Ward,
the Court recognized that when a regulation is facially content-neutral, the court must
“look[] to governmental motive, including whether the government had regulated
speech ‘because of disagreement’ with its message, and whether the regulation was
‘justified without reference to the content of the speech.’” Id. at 2228–29 (quoting
Ward, 491 U.S. at 791). Indeed, the Ward decision explicitly recognized that a
regulation which “serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages, but not
others.” Ward, 491 U.S. at 791. Thus, when a regulation is content-neutral on its
face, the “principal inquiry . . . is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys.”
The City’s explanation of its motives satisfies this test. The City claims that,
at its core, the licensing regime is intended to protect its tourism industry by ensuring
that tour guide customers get what they pay for. Def.’s Resp. 10. The City basically
17
adopts the court’s formulation of its motives in the 2016 Order, where the court
explained that
[t]he problem is not simply that unqualified guides may provide visitors
with false information, it is that they may do so under the guise of
providing “accurate” information, and that such behavior may harm
visitors, residents, and the industry overall. The difference between
what is promised and what is delivered is the core of the City’s interest,
not the content of the information itself.
Id. at 19 (quoting 2016 Order at 24). On this view, the City’s interest in the specific
contents of a tour guide’s speech is secondary to its ultimate goal of ensuring that tour
guide customers are not deceived. These motives are clearly entitled to intermediate
scrutiny under Ward’s “principal inquiry” because they have nothing to do with the
City’s own view of the messages the tour guides convey. Ward, 491 U.S. at 791
(“The principal inquiry in determining content neutrality, in speech cases generally
and in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the message it
conveys.”). The Fifth Circuit reached a very similar conclusion in Kagan, where it
analyzed the City of New Orleans’s tour guide licensing statute and found that the
city’s desire to “identif[y] those tour guides who . . . are reliable, being
knowledgeable about the city and trustworthy, law-abiding and free of drug
addiction” to be content neutral. Kagan v. City of New Orleans, La., 753 F.3d 560,
561 (5th Cir. 2014) cert. denied, 135 S. Ct. 1403 (2015). 9
9
Notably, the district court in Edwards v. District of Columbia, 943
F.Supp.2d 109, 121 (D.D.C. 2013), also found the District of Columbia's tour guide
licensing requirement to be content-neutral. Though the D.C. Circuit ultimately
reversed the district court’s decision, it did not address the district court's finding on
this issue. See Edwards v. D.C., 755 F.3d 996, 1001 (D.C. Cir. 2014) (“[W]e will
assume, arguendo, the validity of the District's argument that the regulations are
18
The fact that the City’s licensing regime may unintentionally promote certain
viewpoints—namely, the ones the City thinks tourists wish to hear—is only a
collateral consequence of means utilized to pursue its ultimate goal. Ward, 491 U.S.
at 791 (“A regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some speakers or messages but
not others.”). Ultimately, “[g]overnment regulation of expressive activity is content
neutral so long as it is ‘justified without reference to the content of the regulated
speech.’” Ward, 491 U.S. at 791 (emphasis in original) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984)). To the extent the City’s licensing
laws regulate the content of the tour guides’ speech, they only do so as a means to a
content-neutral end—ensuring tour guide customers get what they pay for. Thus, if
the trier of fact credits the City’s explanation of its motives, the licensing requirement
is “justified” without reference to the content of the regulated speech.
In conclusion, it is clear that the City’s licensing scheme was designed to
influence the information customers were being provided on guided tours, but this
does not necessarily mean that the licensing law was content-based because there is a
genuine dispute as to why the City wished to exercise such influence. Under Reed
and Ward, if a law is facially content-neutral, the focus shifts to whether the City’s
ultimate goal is content-neutral, not the specific impact the law may have on one
particular type of content or another.
B.
Intermediate Scrutiny
content-neutral and place only incidental burdens on speech.”). Thus, every court
that has addressed the issue has found tour guide licensing schemes to be contentneutral.
19
Plaintiffs contend that, even if City’s licensing regulations are deemed to be
content-neutral, they are still unconstitutional because the City has not presented
sufficient evidence to meet the requirements of intermediate scrutiny. Pl.’s Mot. 29.
The City contests this assertion. Def.’s Mot. 20–30.
The parties do not challenge the basic framework for evaluating intermediate
scrutiny outlined in the court’s 2016 Order. In the 2016 Order, the court explained:
For a law to meet the requirements of intermediate scrutiny, it “must be
‘narrowly tailored to serve a significant governmental interest.’”
McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014) (quoting Ward, 491
U.S. at 796)). This inquiry recognizes that the First Amendment “does
not simply guard against an impermissible desire to censor,” and that a
government may attempt to impermissibly restrict speech purely as a
matter of convenience. Id. “[B]y demanding a close fit between ends
and means, the tailoring requirement prevents the government from too
readily ‘sacrific[ing] speech for efficiency.’” Id. at 2534–35 (quoting
Riley v. Nat’l Federation of Blind of N.C., Inc., 487 U.S. 781, 795
(1988)). Ultimately, for a content-neutral regulation “to be narrowly
tailored, it must not ‘burden substantially more speech than is necessary
to further the government’s legitimate interests.’” Id. at 2535 (quoting
Ward, 491 U.S. at 799). While this does not require that a subject
regulation “‘be the least restrictive or least intrusive means of’ serving
the government’s interests, . . . the government still ‘may not regulate
expression in such a manner that a substantial portion of the burden on
speech does not serve to advance its goals.’” Id. (quoting Ward, 491
U.S. at 798, 799).
2016 Order at 22–23.
The Fourth Circuit’s decision in Reynolds v. Middleton, 779 F.3d 222 (4th
Cir. 2015), evaluated the impact of the Supreme Court’s McCullen decision on the
intermediate scrutiny analysis. The Reynolds court recognized that the government
need not produce evidence to show the existence of a “significant governmental
interest,’ observing that “common sense and the holdings of prior cases have been
20
found sufficient to establish” government interests in the past. Id. at 227. The court
also found that “objective evidence is not always required to show that a speech
restriction furthers the government’s interests.” Id. “However, the Reynolds court
did find that McCullen requires ‘the government to present actual evidence
supporting its assertion that a speech restriction does not burden substantially more
speech than necessary; argument unsupported by the evidence will not suffice to carry
the government’s burden.’” 2016 Order at 23 (quoting Reynolds, 779 F.3d at 229);
see also Bruni v. City of Pittsburgh, 824 F.3d 353, 371 (3d Cir. 2016) (“McCullen
required the sovereign to justify its regulation of political speech by describing the
efforts it had made to address the government interests at stake by substantially lessrestrictive methods or by showing that it seriously considered and reasonably rejected
‘different methods that other jurisdictions have found effective.’”).
The only issue that plaintiffs can seriously dispute under the intermediate
scrutiny analysis is whether the licensing law burdens substantially more speech than
necessary. 10 The court has already held that “governments have a legitimate and
substantial interest in preventing fraudulent or misleading commercial operations and
protecting their industries.” 2016 Order at 25 (citing Riley, 487 U.S. at 782 (“[A]
State’s interest in protecting [] the public from fraud is a sufficiently substantial
interest to justify a narrowly tailored regulation.”); Kagan, 753 F.3d at 561–62
(finding government interest in protecting tourism industry and visitors)). Just as
they did at the preliminary injunction stage, plaintiffs again try to shoehorn an
10
This is sometimes referred to as the “narrow tailoring” requirement.
21
argument that the City’s motives are content-based into the intermediate scrutiny
analysis, claiming that “the government cannot regulate speech for the purpose of
improving the quality of that speech.” Pl.’s Resp. 23. But as the court explained in
the 2016 Order, the City’s desire to make sure that tour guides provide the services
that customers expect simply cannot be equated with a desire to “improve” the quality
of the tour guides’ speech. 11 2016 Order at 24 (explaining that, in the City’s view,
“[t]he problem is not simply that unqualified guides may provide visitors with false
information, it is that they may do so under the guise of providing “accurate”
information, and that such behavior may harm visitors, residents, and the industry
overall”). It is also difficult to see how plaintiffs can argue that the licensing scheme
does not advance the City’s interest. It seems clear that forcing prospective tour
guides to learn the information in the Manual would help ensure that the city’s tour
guides are knowledgeable enough to provide the services that their customers expect.
Thus, the only real argument is whether the City’s regulation “burden[s]
substantially more speech than is necessary to further the government’s legitimate
interests.” Turner Broad. Sys., 512 U.S. at 662 (quoting Ward, 491 U.S. at 799). As
11
The City has also presented evidence that it had reason to worry about
unknowledgeable or fraudulent tour guides. The parties do not appear to dispute that
Charleston is a highly regarded tourist destination, Riley Aff. ¶ 3, and the City has
produced over 100 pages of news reports detailing a variety of incidents in other
highly regarded tourist destinations involving unqualified or fraudulent tour guides
and other similar scams. ECF No. 42-1. For instance, the City has provided articles
discussing tours in Hollywood, California that falsely identified the homes of various
ordinary Hollywood residents as celebrity homes. The City has also provided
evidence that tour guide customers have actually lodged complaints about tour guides
providing false or inaccurate information. ECF No. 62-1, Maybank Aff. ¶ 7.
Therefore, the City has shown evidence that unscrupulous tour guides actual pose a
threat to its interests.
22
an initial matter, the court is not convinced that the City’s licensing regime creates a
particularly significant burden on speech at all, much less a burden that substantially
exceeds that which is necessary to further the City’s legitimate interests. As the court
observed in the 2016 Order, “the licensing regime burdens a rather small range of
speech—namely, speech given in connection with hired tour guide services.”
Charleston City Code § 29–58. The City’s licensing laws do not prevent any person
from discussing any issue in any location. Instead, they prevent unlicensed persons
from conducting certain forms of speech in specific parts of the city under very
specific conditions—namely, for payment. The court has already examined the
contrast between this case and cases like McCullen and Reynolds, where speakers
were absolutely prohibited from engaging in certain forms of speech in certain
locations. McCullen, 134 S. Ct. at 2535 (noting the “serious burdens” imposed by the
abortion facility “buffer zone” regulations, which “carve out a significant portion of
the adjacent public sidewalks, pushing petitioners well back from the clinics’
entrances and driveways”); Reynolds, 779 F.3d at 231 (finding that roadside
solicitation ordinance “prohibit[ed] all forms of leafletting, which is one of the most
important forms of political speech . . . as well as soliciting any kind of contribution,
whether political or charitable, or selling or attempting to sell goods or services”).
Plaintiffs point out that “people—now and in the past—are remaining silent
rather than speaking solely because of the licensing requirement,” but this argument
is simply not responsive to the issue. This case is well past the question of whether
some speech is burdened; the question now is whether a substantial amount of speech
is unnecessarily burdened. Discovery has closed and plaintiffs have identified four
23
people whose speech has been burdened—themselves and a tour guide named Paula
Reynolds who leads multi-city tours through Charleston and is unable to conduct the
Charleston portion of the tour herself. ECF No. 39-5, Reynolds Dec. ¶¶ 14–16.
When this number is compared to the number of prospective tour guides who pass the
exam every year, a reasonable trier of fact could find that the City’s licensing regime
simply does not place a very significant burden on speech.
Furthermore, the court remains convinced that “paid tour guide speech is not a
form of expression that ‘[has] historically been [] closely associated with the
transmission of ideas,’” McCullen, 134 S. Ct. at 2536, and thus, the City’s licensing
laws do not present a particularly grave threat to principles underlying the First
Amendment. Plaintiffs disagree and argue that paid tour guide speech “is exactly the
kind of speech the Supreme Court referred to in McCullen as ‘closely associated with
the transmission of ideas’—it is ‘normal conversation . . . on a public sidewalk.’”
Pl.’s Mot. 30. But the very fact that plaintiffs wish to be paid is one of the many
reasons that their “conversations” with their customers cannot seriously be considered
“normal”—normally, people do not pay for conversation. There may some forms of
paid speech that are also closely associated with the transmission of ideas—
newspapers, speeches, books, movies, etc.—but plaintiffs cannot compare their paid
tours with the conversations at issue in McCullen. That case involved abortion
opponents who wished to be able to approach patients entering abortion clinics in
order to offer anti-abortion literature and engage them in ideologically-based
conversations. McCullen, 134 S. Ct. at 2536. The McCullen decision observed that
“‘one-on-one communication’ is ‘the most effective, fundamental, and perhaps
24
economical avenue of political discourse.’” Id. (quoting Meyer v. Grant, 486 U.S.
414, 424 (1988)). The matters at issue in this case are simply not of the same
character. Thus, the court concludes that the substantial burden inquiry must be
framed by the initial observation that the City’s regulations impose a rather small
burden on a form of speech that is not “closely associated with the transmission of
ideas.” McCullen, 134 S. Ct. at 2536.
The City has also provided evidence that the magnitude of speech it
unnecessarily burdens is very limited because most of the tours in Charleston focus
on the subjects discussed in the Manual and continuing education classes. A 2016
report by the College of Charleston’s Office of Tourism Analysis found that “the
Charleston area’s history and historic attractions have remained and will presumably
continue to be the most important factor in visitors’ decision to visit Charleston.”
Charleston Visitor Survey Report at Bates No. 003527; see also ECF No. 66-2, Hill
Aff. ¶ 6(d) (“[V]isitors who travel to [Charleston] are likely to be interested in
[Charleston’s] history.”). Plaintiffs have highlighted the existence of certain “nonhistorical” tours, such as ghost and pub tours, but there is testimony that even these
tours draw on the city’s history. See Reyonolds Dep. 207:11–16; ECF No. 44-2,
Warfield Dep. 31:16–32:25. To the extent the City’s licensing scheme burdens
prospective tour guides who wish to give tours that draw on the material tested by
written examination, those burdens are necessary for the scheme to advance the
City’s interest in protecting consumers. Concededly, the licensing scheme may place
burdens on prospective tour guides who wish to give tours that do not draw on
25
information addressed in the Manual, but a reasonable trier of fact could find that
very few prospective tour guides fall into this category.
Plaintiffs last argue that the City simply has not provided any evidence that it
actually attempted to address its concerns using any alternative, less-restrictive
means. Plaintiffs appear to be correct in this assertion. However, this does not render
the licensing scheme unconstitutional. As the court explained in its 2016 Order, the
City must show that “it did not forego readily available, less intrusive means of
protecting those interests.” 2016 Order at 31. But the City is not required to show
that it “tried or considered every less burdensome alternative.” Bruni, 2016 WL
3083776, at *12 (emphasis in original).
Plaintiffs have highlighted several possible alternatives, arguing that the City
could rely on a voluntary certification program, operate or hire a company to conduct
its own tours like Savannah, Georgia, or rely on the enforcement of fraudulent
solicitation laws. Pls.’ Mot. 32–33. Of course, the available alternatives requirement
implicitly assumes that the alternatives would actually work. The City has presented
evidence that each of plaintiffs’ alternative proposals would be either impracticable or
less effective than the current licensing scheme. For instance, Esther Banike, a longtime tour guide and Executive Secretary of the World Federation Tourist Guide
Associations, who testified that voluntary certification programs are less effective
than mandatory exams because, under a voluntary scheme, not all tour guides are held
to the same standard. ECF No. 41-1, Banike Dep. 177: 13–23. With respect to
plaintiffs’ suggestion that the City operate or hire its own tour company, the City has
presented evidence that Savannah, Georgia does not actually utilize this approach,
26
ECF No. 62-7, Lidy Aff. ¶¶ 3, 4, and even if they did, the court is not convinced that
one municipalities adoption of an alternative would preclude a reasonable trier of fact
from concluding that alternative was not “readily available.” The evidence also fails
to conclusively establish whether the City could accomplish its goals through
enforcement of fraudulent solicitation statutes. It is questionable whether the City’s
fraudulent solicitation statute, which prohibits the making of “deceptive or misleading
oral or written statement[s] or representation[s]” and “misrepresent[ing] the nature of
[a] products [,]” Charleston Code § 21-232(a)–(b), covers all of the activity the City is
concerned about—particularly, tour guides who are simply unknowledgeable, but not
necessarily fraudulent. Even if the City could enact a statute that covered the
problematic activity, the City has presented evidence from Daniel Riccio, a former
Charleston police officer, who avers that, in his experience, “tourist[s] who are
victimized while traveling . . . are unlikely to pursue prosecution of the person who
harmed them.” ECF No. 62-6, Riccio Aff. ¶ 7. Plaintiffs have presented evidence
that the city of Philadelphia, Pennsylvania utilizes this method, ECF No. 39-5,
Reynolds Aff. ¶ 141, but again, one city’s decision to adopt an alternative approach is
hardly conclusive evidence of the approach’s viability. Finally, even if some of these
alternative methods would be just as effective as the City’s current licensing scheme,
it seems very unlikely that any of these alternatives would burden “substantially” less
speech than the current law, given that the current law burdens very little speech to
begin with. Thus, a reasonable trier of fact could find that the City did not forego less
restrictive, available alternatives.
Therefore the court denies plaintiffs’ motion for summary judgment.
27
IV. CONCLUSION
For the foregoing reasons, the court DENIES both motions for summary
judgment. Further, the court GRANTS in part and DENIES in part the motion to
strike.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 25, 2017
Charleston, South Carolina
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?