Billups v. City of Charleston
331 F. Supp. 3d 500
D.S.C.2018Background
- Charleston requires a city-issued tour guide license (written exam drawn from a 483‑page Tour Guide Manual; continuing education or re‑examination for renewal) to lead paid tours on public streets within regulated historic districts. The law dates to 1983 and was amended in 2016 (oral exam removed; passing score lowered from 80 to 70).
- Plaintiffs are prospective/aspiring tour guides (and a tour operator) who failed the exam or were delayed by the licensing requirements and challenged the ordinance facially and as‑applied under the First Amendment. A bench trial occurred after cross motions and prior denials of injunctive relief and summary judgment.
- The City defended the licensing scheme as content‑neutral regulation intended to protect the tourism economy and tourists from unscrupulous or unqualified guides, relying on the Tourism Management Plan and enforcement tools (business license, deceptive solicitation ordinance, tourism enforcement officers).
- Plaintiffs argued the law restricts protected speech (paid tour narration on public sidewalks) and is not narrowly tailored; they sought to apply strict scrutiny (content‑based) or, alternatively, show failure of intermediate scrutiny.
- The court treated the tour speech as protected and public‑forum speech but decided the constitutional outcome under intermediate scrutiny, finding the City failed the narrow‑tailoring requirement because it presented no evidence it actually tried less speech‑restrictive alternatives before imposing the licensing regime.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny applicable to tour‑guide licensing | Licensing is content‑based and should trigger strict scrutiny | Law is content‑neutral management of tourism and should get intermediate scrutiny | Court did not resolve content‑based classification; applied intermediate scrutiny and struck the law under that test |
| Narrow tailoring (did City try less‑restrictive alternatives?) | City failed to try less speech‑restrictive measures; licensing not narrowly tailored | City argues alternatives (deceptive solicitation ordinance, business license, voluntary certification, enforcement officers) are inadequate or impractical | City failed to present evidence it actually tried or seriously pursued alternatives as required by Reynolds; licensing not narrowly tailored and unconstitutional |
| Burden on speech and public‑forum status | Paid tour narration is protected speech on public sidewalks; ordinance burdens many speakers | City emphasizes tourist safety and economic interests justify regulation | Court confirmed speech is protected and the forum is public; burdensome licensing cannot be justified without narrow tailoring |
| Remedy | Plaintiffs sought invalidation of the licensing requirements | City defended as essential to tourism management | Court struck down the licensing law as violating the First Amendment under intermediate scrutiny |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (government may not regulate speech based on content without a compelling interest and narrow tailoring)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (intermediate scrutiny requires close fit between means and significant governmental interest)
- Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015) (government must present actual evidence it tried less intrusive alternatives to satisfy narrow‑tailoring under intermediate scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content‑neutral time, place, and manner test requires narrow tailoring to significant government interest)
- Turner Broadcasting Sys. v. FCC, 512 U.S. 622 (1994) (distinguishing content‑based and content‑neutral regulations and levels of scrutiny)
- Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) (government cannot restrict expression based on subject matter or viewpoint)
- Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014) (invalidated a tour‑guide licensing scheme where other cities maintained tourism without mandatory licensing)