"Regulates a service offering that entails speech -- itdoesnot regulate the speech"

Mon Jul 7 15:04:32 PDT 2008

So is "certification" the convergence point?  I have no particular
desire to move further into compulsory licensure.

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, July 07, 2008 4:58 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: "Regulates a service offering that entails speech --
itdoesnot regulate the speech"

    Why assume this?  The government is entitled to speak, even if its
speech expressly condemns someone else's speech.  It is certainly
entitled to speak in praise or in endorsement of one set of speakers, so
that its silence about others conveys an implicit disapproval.  But the
government's right to say "Volokh's theories are silly" or even
"Levinson's answers are quite sound" (implicitly suggesting that Volokh
is wrong) doesn't mean that it may therefore order Volokh not to express
his theories until he passes some test and gets some license.

    Eugene

 Sandy Levinson writes:

	I agree that "certification" without prohibition would suffice.
But I assume that Eugene would have problem with the state's
"certifying" certain speakers as "kosher" and thus necessarily tainting
the "uncertified" ones.  

	sandy

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jonathan H.
Adler
	Sent: Monday, July 07, 2008 4:15 PM
	To: 'Volokh, Eugene'; CONLAWPROF at lists.ucla.edu
	Subject: RE: "Regulates a service offering that entails speech
-- it doesnot regulate the speech"

	I would add one thing to Eugene's argument.   

	In Philadelphia (and many other places) the government sponsors
speech from what we may think of as a "privileged" position.  This makes
it relatively easy for the government to provide accurate information
and correct misinformation.  The National Park Service manages most of
the major properties of historical interest (Independence Hall, the
Liberty Bell, etc.) and has exclusive control over the tours of these
properties.  The tours are conducted by NPS personnel, and nothing stops
the NPS from requiring its own guides from passing tests to ensure that
they have adequate historical knowledge.  Further, if misinformation by
private guides outside of the historical properties themselves is a
problem, the NPS (or some other entity) could certify tour providers
based upon their command of history, etc.  So it seems to me that here,
as in many other contexts, if there is a problem it can be cured by more
speech - particularly government speech and certification - rather than
limitations on speech.

	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>  
	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 Volokh, Eugene
	Sent: Monday, July 07, 2008 4:37 PM
	To: CONLAWPROF at lists.ucla.edu
	Subject: "Regulates a service offering that entails speech -- it
does not regulate the speech"

	    It seems to me the argument below doesn't work.  The law is
a (1) content-based rule that (2) bars people from speaking in a certain
way until they pay a money and pass a test.  That is surely a direct
restriction on speech, and a content-based one at that.  What's more,
the justification for the restriction is precisely a desire to affect
the content of what is said (perhaps laudably by making sure it's right,
but that's still a content-related justification, unlike, say, a
requirement that the tour driver have a valid license and adequate
insurance).

	    Now it's true that once the exam is taken and the license is
received, there doesn't seem to be power to revoke the license based on
supposed historical errors in the tour guide's comments.  But that
doesn't change the fact that we're talking here about a content-based
speech restriction.

	    The "book can be examined beforehand, tour can't be"
distinction doesn't affect any of the above; but in any event, one can't
examine a videodisc up front before buying or renting it -- does it mean
that people who make documentaries on certain topics can be required to
get a license and pass a test on that topic?  I would think not.  And,
as others have pointed out, there are ample other ways the government
could protect the consumer, for instance by setting up a "seal of
approval" system.

	    Eugene

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of jfn
	Sent: Saturday, July 05, 2008 3:09 AM
	To: conlawprof at lists.ucla.edu
	Subject: RE: Licensing and exam requirements for tour guides

		At 1:20 PM -0700 7/4/08, Scarberry, Mark wrote:

			The advertisement of a tour is commercial
speech, but what is said on the tour is not.

		The ordinance says that no one can "act as a tour guide"
without a certificate that the guide has passed a test of "the
applicant's knowledge of the geography, history, historic sites,
historic structures, historic objects and other places of interest in
the Center City Tourist Area." The ordinance exempts guides who are
trained/tested by an employer's program that "is equivalent to or
exceeds" the City's test.

		The ordinance regulates a service offering that entails
speech-- it does not regulate the  speech. The certified guide may say
anything at all, or nothing at all, without running afoul of the
ordinance. The uncertified speaker may say anything he wants, as long as
he doesn't hold himself out as a tour guide. The analogy to authors is
weakened inasmuch as the tour guide is engaged in mixed speech and
conduct-- transporting tourists while identifying and describing points
of interest.

		The issue is whether there is a First Amendment right to
"act as a tour guide" without public or private certification that you
are capable of guiding a tour. From this perspective, the ordinance
looks like basic consumer protection legislation. The analogy to books
breaks down further inasmuch as there is a less restrictive alternative
that adequately addresses the government interest in preventing consumer
fraud in the sale of books-- unlike the guided tour, the published book
offers the buyer and the public generally the opportunity to examine the
book, reviews of the book, and the author's credentials, before paying
for the book.

		I think that Eugene also tilts the analysis from the
outset by calling the City's certificate a "license." The distinction
may be thin in common parlance, but in the context of the First
Amendment, the requirement of a "license" implies a measure of official
discretion that is at the root of the First Amendment burden. E.g.
Lakeland. The City's certification of tour guides, on the other hand,
based on whether they passed a test, does not admit of any opportunity
for the exercise of official discretion.

		John Noble

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