Licensing and exam requirements for tour guides
Steven Jamar
stevenjamar at gmail.com
Fri Jul 4 10:22:41 PDT 2008
Surely the government can license guides, as noted by Prof.
Wasserman. The main issue is whether the government stop someone from
acting as a guide for pay unless the person has a license. And then
require that person to pass a test. I don't see any restriction in
speech here. The only time there would be a speech restriction is
when the government required the guide to give certain speeches on the
tour.
Requiring knowledge as reflected in a test and some training through a
course to get a license seems unobjectionable under first amendment
grounds.
There is no direct regulation of speech through this.
Anyone would still be free to be an unlicensed soap-box "guide" or
unpaid guide (in my hypo) without the course and test.
This person is not a private guide of the Hershey Factory (back when
they gave tours). It is a guide of a city with a history and geography.
Though, I do in fact enjoy some guides I've had in some parts of the
world where one story that is associated with one particular location
ends up being transfered through time and space to many different
times and places -- and the story is a good one and true (the events
happened even if not exactly when or where the guide claims), even if
nearly all of the tourists don't know the degree of embellishment,
fabrication, misplacement or mistiming of it.
But the practice of places like the Galapagos of requiring high levels
of training as part of an education function or of Greece as part of a
heritage preservation and dissemination function seem to be pretty
good ideas to me.
Speech is not being impacted much, if at all, by this requirement.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:stevenjamar at gmail.com
Washington, DC 20008 http://iipsj.com/SDJ/
"Any intelligent fool can make things bigger, more complex, and more
violent. It takes a touch of genius - and a lot of courage - to move
in the opposite direction."
Albert Einstein
On Jul 4, 2008, at 12:47 PM, Volokh, Eugene wrote:
> I would have a huge problem with the government's requiring
> licensing for history teachers at *private* institutions that cater
> to adults. Naturally, the government may demand a lot of its
> employees, but here the government isn't acting as employer; it's
> acting as sovereign controlling what private institutions convey.
>
> As to the misleading speech rationale, I just don't buy it: The
> lack of licensing and exams for speakers such as book authors,
> including those who sell their speech for money, is not an "oddity";
> it's a basic principle of First Amendment law. The government can't
> license and test authors, newspaper editors, documentary filmmakers,
> or others even if its rationale is protecting the public from shoddy
> speech products; setting aside express misrepresentations in
> advertisements, the quality or competence of authors, directors, or
> other speakers is up to the market to police, not the government.
>
> Nor is there a special rule of delicate treatment for books on
> this score; as I mentioned, the analysis is the same for newspapers,
> films, and other speech, including those -- like films -- that you
> can't judge before buying.
>
> Eugene
>
> From: Malla Pollack [mailto:mallapollack at yahoo.com]
> Sent: Friday, July 04, 2008 9:02 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: Licensing and exam requirements for tour guides
>
> But presumably you have no problem with requiring licensing (based
> on proof of competence) for history teachers? This seems to me to
> be a statute preventing misleading or inaccurate commercial
> advertising -- by offering a tour you are implicitly claiming enough
> historical knowledge about Phili to provide a useful tour.
>
> The oddity is the lack of licensing for book authors -- presumably
> because (unlike tours) you can judge a book before buying it and
> because books are usually treated delicately because of First
> Amendment concerns.
>
> Malla Pollack
> Barkley School of Law
> ----- Original Message ----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> To: conlawprof at lists.ucla.edu
> Sent: Friday, July 4, 2008 10:02:52 AM
> Subject: Licensing and exam requirements for tour guides
>
> The Institute for Justice is challenging Philadelphia's new
> requirement (http://webapps.phila.gov/council/attachments/5141.pdf)
> that
> tour guides be licensed and take special history exams. IJ seems to
> be
> exactly right on this: such a requirement violates the First
> Amendment,
> yes? I take it that the government couldn't require that authors of
> history books or travel books be licensed and take exams; nor can it
> require the same as to theaters that present history/geography-related
> informational entertainment (except that it could set up content-
> neutral
> licensing requirements for non-content-related reasons, such as making
> sure that the theater is properly fire-safe, or for that matter that
> the
> tour guide operator has licensed drivers and adequate accident
> insurance). How could the answer be any different for tours, which
> are
> likewise a form of history-/geography-related infotainment? Or am I
> missing something here?
>
> (There are, of course, similar requirements for professionals
> who provide individualized advice to clients on important matters,
> such
> as law, medicine, psychology, or finance, but here there is no
> individualized advice nor the high stakes involved in typical advising
> professions.)
>
> Eugene
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