Should Tour Guides Be Licensed?

From left, Jean Soderlind, Dan Leger, Michelle Freenor and Steven Freenor are suing the city of Savannah to end the city’s regulation of tour guides. Courtesy of Institute for Justice

When Dan Leger applied for his tour guide's license in Savannah, Georgia, six years ago, he had to strip, give blood and urine samples, detail his sexual history and submit to the dreaded "cough test." Leger has also had to undergo additional physicals to renew his credentials, per Savannah's ordinance on tour guide licensing. The city's regulations also require tour guides to pass a background check and a 100-question history test, as well as pay multiple fees.

"This is all simply so you can walk around and tell a story," Leger, who goes by the moniker Savannah Dan, says. "The city of Savannah shouldn't have the authority to license my free speech."

On November 17, Savannah Dan and three other tour guides filed a federal lawsuit against the city, alleging that the licensing rules violate their First Amendment rights. They claim these procedures constitute an unconstitutional burden on free expression.

Though this dispute involves just one small Southern town, it could set a legal precedent across the country. Tour guides in New Orleans and Washington, D.C., have challenged licensing requirements in separate federal lawsuits. One federal appeals court upheld the former city's licensing requirements, but the federal appeals court governing D.C. ruled against licensing. Because there isn't a consistent opinion in the federal circuit courts, the Institute for Justice, a libertarian legal aid group representing these guides, has asked the U.S. Supreme Court to consider the tour guide issue by hearing the New Orleans case. The Supremes' decision would become the law of the land.

The suit also touches on a legally gray area that has been the subject of several other recent federal lawsuits: Can the government regulate speakers and writers who profess some kind of expertise?

Robert McNamara, senior attorney at the Institute for Justice, calls the issue a "crossroads" in constitutional law.

"It is incredibly important at this juncture for the courts step in and reaffirm that there is no exception to the First Amendment for occupational licensing," he says.

Take the case of John Rosemond. He is a family psychologist and is licensed in North Carolina, where he lives. Rosemond writes an advice column that's syndicated in some 225 U.S. newspapers. He is known for writing the "longest-running single-author advice column in the country."

In May 2013, Kentucky's State Board of Psychology sent Rosemond a cease-and-desist letter, ordering him to stop publishing his column in the state. The board maintains that Rosemond is practicing psychology without a license, because he does not have certification in Kentucky, an offense punishable with jail time. Rosemond has since sued the board. The Institute for Justice is also representing him.

A similar situation played out in Texas. Dr. Ron Hines, a disabled veteran, has worked as a veterinarian since 1966. During his stint in the military, he fractured his spine, so he couldn't spend as much time on his feet as most veterinarians. When Hines could no longer practice because of this injury, he spent more and more time on the computer.

In 2002, he started a veterinary advice website, serving as a sounding board to pet owners who had gotten conflicting advice from vets in their hometowns. Animal owners in far-flung parts of the world who did not readily have access to veterinary care would often ask Hines how and where they could get help. Hines charged approximately $58 for advice but often gave pro bono assistance when an owner could not pay.

In March 2013, the Texas State Board of Veterinary Medical Examiners sent him a cease-and-desist letter, fined him $1,000 and suspended his license. The board claimed that Hines had violated its rules because he did not physically examine the animals before giving veterinary advice. Scared, he effectively halted his work. Hines, who is also represented by the Institute for Justice, is suing the board.

Nicole Oria, the board's executive director, tells Newsweek, "We don't have a problem with the fact that he writes general articles. The problem is that our statute is very clear that you have to have a veterinary client-patient relationship prior to practicing medicine."

Oria adds, "It very specifically says you cannot do this by electronic means only."

Steve Cooksey, who blogs about his diabetes diet, has had a similar run-in with North Carolina's Board of Dietetics/Nutrition. In 2009, doctors diagnosed Cooksey with diabetes and told him that he would be drug- and insulin-dependent for the rest of his life. Cooksey was 47 and didn't want to live that way with his disease, so he started experimenting with his diet. When he reduced his carb intake, he managed to reduce his blood sugar, he says.

Cooksey claims this Paleo-inspired approach allowed him to drop insulin and medication in less than two months. So he started a blog where he offered nutritional advice for diabetes patients skeptical of the common "carb up and shoot up" protocol, he says. In early 2012, however, the nutrition board called to tell him it had opened an investigation of his site. Shortly after that call, the board sent him an official write-up.

"They marked up my website in red," Cooksey says, explaining that the board printed out his site and wrote instructions on paper. "They said, 'You can't do this. You can't do that.

"All I was doing is telling people common sense things."

Not all are convinced that the Savannah tour guides' argument will hold up in court, or that their case reflects constitutional questions in occupational licensing.

Bret Bell, Savannah's public information officer, counters that the regulations "in no way" restrict free speech. They're in place to make sure that guides and tourists don't overwhelm the 2.5-square-mile historic district, which could ruin the quality of life for full-time residents.

"We have 330 licensed tour guides in Savannah. Almost all of them operate in our historic district," he says. "Up until now, the conversation hasn't been 'we don't have enough tour guides,' but that 'we have too many of them.'"

Bell adds that Savannah is now considering a major overhaul of the ordinance, including the required physical.

Ken Paulson, president of the First Amendment Center and dean of Middle Tennessee State University's College of Mass Communication, doubts the First Amendment claim will prevail.

"The city has a right to regulate businesses in its community, and as long as those regulations reasonably advance a legitimate goal, they're likely to be upheld," Paulson says. "The city isn't banning speech. It's licensing a business. Citizens are free to walk the streets of Savannah touting its beauty without a test or permit as long as they're not turning their tour into a business."

Clarification: This article originally stated that the Institute for Justice had asked the U.S. Supreme Court to hear the Savannah case. It had asked the U.S. Supreme Court to consider the tour guide issue, by hearing the New Orleans case.