"Regulates a service offering that entails speech -- it does not regulate the speech"

[Ilya Somin]

A couple of points on the "book can be examined beforehand, tour can't be" argument.

First, not all books can be examined beforehand. In this day and age, many people buy books online or by mail order. To the extent that we can use book reviews as proxies for an examination, the same can be said for reviews of tours. Many tourist guidebooks include advice about the quality (or lack thereof) of tours in the city they cover.

Second, even when you can examine the book beforehand, it's usually impossible to read all or a large part of the book before buying it (it takes too much time). I'm sure many list members have had the experience of buying a book that seemed good only to discover serious flaws or factual errors in it upon reading it later. 



Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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    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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