Licensing, exam requirements, and slippery slope worries

[Volokh, Eugene]

    It seems to me that Sandy's post helps illustrate why people like me
(who are not absolutists, of course) worry about even small deviations
from those protections.
 
    To begin with, I don't really see how the government-as-employer
cases really apply here.  The premise of those cases is that, in
exchange for paying employees money to do a particular job the
government hires them to do, the government may require that the
employees don't undermine the government's project.  The cases expressly
disclaim any application to the government acting as sovereign (see,
e.g., Connick v. Myers).  These tour guides are not government employees
or even government contractors.  I don't really see how the special
power the government gets precisely from being the speaker's paymaster
should apply when the government is not in fact the speaker's paymaster.
 
    But let's look at the broader picture.  Free speech libertarians
worry about slippery slopes, in which a narrow restriction serves as a
precedent for broader ones.  The common response is that the two kinds
of restrictions are distinguishable, because there's some relevant
difference between them.  As I argue in my Mechanisms of the Slippery
Slope, that's not a sufficient response, because the worry is that the
two restrictions will not be distinguished, even if they are
distinguishable -- i.e., that future courts would treat the two kinds of
restrictions similarly, even if they could and should treat them
differently.
 
    And consider what's happening here.  One would think that
government-as-employer free speech doctrine wouldn't lead to slippery
slopes to the government-as-sovereign, precisely because the two
categories are so clearly distinguishable (and the Court has said that
they should be treated differently).  Yet here we have an argument that
uses the government-as-employer doctrine as a precedent for restrictions
far outside the government's special employer role.  
 
    If this argument is accepted, what further restrictions could the
new proposal be used as precedent for?  Obviously, it could be used as
precedent for actually controlling the speech of the guides, since the
purpose for that is the same -- preventing inaccuracy -- and since the
rationale that "private tour guides are kind of like government
employees" is equally applicable there, since the government as employer
does control the speech of its employees (especially when it's the
speech that they're hired to speak).  It could also be used as precedent
for controlling the speech of tour guide authors, tourism journalists,
and then journalists who write about other topics.  Ah, one might say,
but that's distinguishable from tour guide operators.  But the
distinctions are actually much less sharp than the distinction between
government-as-employer and government-as-sovereign -- and yet the
argument below is happy to reject that well-established distinction.
You see, I hope, why I worry about slippage in this area.
 
    What do we have here?  We have a content-based rule imposed by the
government-as-sovereign (since it only applies to people who speak about
a particular category of topics).  It's a prior restraint, in that it
requires a license before people speak, and not just a license justified
by the noncommunicative concerns (e.g., congestion, risk of accidents,
volume, etc.).  The interests are not remotely compelling, and there are
plenty of other alternatives (such as a seal of approval, as someone
suggested; plus I take it that people often get tour recommendations
from repeat players who do care about word of mouth, such as hotel
concierges, and from Internet searches that yield comments posted by
other tourists).  Yet many people seem quite eager to uphold the
restriction despite all these doctrinal reasons to reject it.  And once
those important First Amendment doctrinal protections are weakened by
departures in cases like this, where else will their weaknesses be felt?
 
    Eugene
 
 
 
Sandy Levinson writes:
 
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
		 

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