Licensing and exam requirements for tour guides

Sat Jul 5 02:27:45 PDT 2008

As a Philadelphia native (I lived there for 18 years and return frequently
to see family), I thought I'd add a tiny bit of context.

In Olde City and the Independence Mall area, there are several properties
and areas owned and maintained by the National Park Service, including
Independence Hall, a visitors' center, the Liberty Bell, etc.  The NPS
provides tours of these sites. 

In this part of the city there are also many guided tours, such as those on
horse-drawn carriages and duck boats.  These are private.  There are also
some sites that are not owned by the government.

It seems to me that the government has ample control over its own speech,
and has legal authority to take measures ensure its accuracy, political
correctness, etc.   Whether such measures will be effective is another
question, however, as I've certainly heard some interesting
characterizations of historical events on such tours.

It also seems to me that the average visitor to Philadelphia knows that the
NPS facilities and sites provide the "official" historical accounts, and
that the scruffy guys on horse drawn carriages offer the "unofficial yet
entertaining" accounts that may include some exaggerated or fanciful
accounts.  It's been this way for years, and I've never seen it as a
problem.  I suspect the real motivation of this law has nothing to do with
ensuring "accuracy," but is really about restricting entry into the guide
business.

JHA

------ 
Jonathan H. Adler 
Professor of Law 
Director, Center for Business Law & Regulation 
Case Western Reserve University School of Law 
11075 East Boulevard 
Cleveland, OH 44106 
ph) 216-368-2535 
fax) 216-368-2086 
cell) 202-255-3012 
 <mailto:jha5 at case.edu> jha5 at case.edu 
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Friday, July 04, 2008 5:55 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Licensing and exam requirements for tour guides

One reason one hires a tour guide is to get (reasonably) objective
information about fairly abstruse details of the site one is seeing.  Guides
are presuably free to interpose some of their own editorial comments.  It
would be clearly unconstitutional for a guide to be unable to make acerbic
comments about Jefferson's owning slaves or John Hancock's being a smuggler.
But I would want the guide to know the details of what happened in
Philadelphia, to know, e.g., that whatever July 4 is, it is not
"independence day" inasmuch as independence was formally declared on the
2nd.  The Declaration is like the Supreme Court's opinion in Quirin, issued
after the all important decision to allow FDR carte blanche with the German
sabateurs.  And, for that matter, I'd be dismayed if tour guides were unable
to answer such likely questions as "how many of the signers owned slaves,"
etc.

I take it that the National Park Service can require that its employees
actually know relevant things bout their site.  If they decide to privatize,
I assume they can require that the people they make contracs with actually
know things.  But perhaps they prefer a freer market (i.e., no contracts),
but nonetheless want to make sure that people who profess to know things
actually do.  I still can't see why that necessarily rises to the level of a
First Amendment transgression.  (Though, frankly, I won't weep if the IJ
wins the case, since I am closer to Eugene's First Amendment absolutism than
to those who would give the state a wide berth to regulate speech.)

sandy

  _____  

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Fri 7/4/2008 4:15 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Licensing and exam requirements for tour guides

Hmm -- I thought this was the difference between the government licensing
the noncommunicative component of an activity (physically getting someone
from point A to point B) as oppose to the communicative component of an
opinion (talking to people about history).  Wouldn't that be the difference
between lack of First Amendment protection (especially as to taxi drivers),
and presence of First Amendment protection (and in fact presumptive
invalidation as a prior restraint)?

Eugene

  _____  

From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Friday, July 04, 2008 1:11 PM
To: Malla Pollack; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Licensing and exam requirements for tour guides

What's the difference between requiring that taxi drivers actually have some
semblance of what in London is called "the knowledge" of where things are
and how to get to them and requiring that persons who are going to take my
money to guide me around Philadelphia actually possess relevant knowledge
about what they're going to show me.  

I can appreciate the impulse behind the suit.  We were in Athens with a
friend of ours who teaches Greek philosophy, and he was accosted when he
started lecturing to the group we were with about the Acropolis.  We were
told in no uncertain terms that that was reserved for licensed tour guides.
That being said, our experience with licensed guides in Greece has been very
good; they do in fact know their stuff, and I benefitted from it.  

And, unlike licensed barbers, etc., where one might depend on word of mouth
to take care of incompetent barbers (and I'm sympathetic to IJ libertarian
critiques of stringent licensing requirements), one can't depend on these
sort of informal controls with tour guides, since their customers are all
tourists who have no way of asking their friends about reliable tour guides.

sandy

  _____  

From: conlawprof-bounces at lists.ucla.edu on behalf of Malla Pollack
Sent: Fri 7/4/2008 11:02 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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