D.C. could use a guide to 1st Amendment


A couple of months ago, these pages related the story of Tonia Edwards and Bill Main, owners of a Segway tour guide company in Washington, D.C., called Segs in the City, who were challenging the District’s licensing rules that require all prospective tour guides to pass a written history test, among other things.

We are pleased to report that, in Edwards v. District of Columbia, the U.S. Court of Appeals for the District of Columbia Circuit has struck down the District’s licensing scheme as unconstitutional for violating tour guides’ First Amendment rights.

In addition to the written test, the District requires anyone wishing to work as a tour guide to pay about $325 in fees biannually. Those who offer their services without a license can be subject to 90 days in jail, a $300 fine or both.

“(This) decision affirms a simple principle,” said Institute for Justice president and general counsel Chip Mellor, who helped argue the case. “In this country, we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to talk.”

While the licensing laws were ostensibly to protect consumers from unscrupulous practitioners, the court noted that market forces already adequately minimize and punish poor service quality. As Judge Janice Rogers Brown wrote in the court’s opinion, “To state the obvious, Segs in the City, like any other company, already has strong incentives to provide a quality consumer experience — namely, the desire to stay in business and maximize a return on its capital investment.”

The court additionally noted that dissatisfied customers can easily report their experiences through services such as Yelp and TripAdvisor, and enough poor reviews will hurt a business’ bottom line until service quality — and the resultant reviews — improve. “Put simply, bad reviews are bad for business,” the court observed. “Plainly, then, a tour operator’s self-interest diminishes — in a much more direct way than does the exam requirement — the harms the District merely hypothesizes.”

During the 1950s, only about 5 percent of the workforce needed a license to work. But the last six decades or so have seen an explosion of licensing requirements, and now approximately 30 percent of the workforce must submit to licensing requirements.

Federal and state courts used to regularly throw out government occupational licensing schemes for violating the right to earn a living in the occupation of one’s choosing. The Florida Supreme Court held in State ex rel. Hosack v. Yocum (1939), for example, that “(t)he fundamental right to earn a livelihood in pursuing some lawful occupation is protected in the Constitution, and, in fact, many authorities hold that the preservation of such right is one of the inherent or inalienable rights protected by the Constitution.”

Sadly, courts over the years have increasingly acquiesced to government authority at the expense of individual rights. This is all the more reason to celebrate the D.C. Circuit’s ruling and hope that it will help to turn the tide of government encroachments on the right to earn a living.

— From the Orange County Register

 

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