Licensing and exam requirements for tour guides

Sat Jul 5 10:58:52 PDT 2008

Of course it's hard to deduce the real motivation of the law makers, but the law came into being after there were a series of embarrassing reports in the local press (and maybe even NPR, if my memory serves me) about the falsehoods being told on tours in the historic part of the city.  City Council acted following those reports.  Now, there may have been backroom dealings between City Council and favored guide businesses to exclude unfavored ones (this is Philadelphia local politics, after all), but on the face of the chronology, that's not what appeared to motivate this law.

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From: conlawprof-bounces at lists.ucla.edu on behalf of Jonathan H. Adler
Sent: Sat 7/5/2008 5:27 AM
To: 'Sanford Levinson'; 'Volokh, Eugene'; conlawprof at lists.ucla.edu
Subject: RE: Licensing and exam requirements for tour guides

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 
jha5 at case.edu <mailto:jha5 at case.edu>  
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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

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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

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	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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