Kagan v. City of New Orleans
957 F. Supp. 2d 774
E.D. La.2013Background
- Plaintiffs are professional tour guides in New Orleans who give paid walking tours; the City requires a license to "conduct tours for hire."
- Licensing prerequisites: $50 initial fee, written exam, drug test, fingerprinting and background check (no felonies in prior five years); renewal every two years with $20 fee, repeat drug test and background check.
- City justifies the scheme to ensure guides have sufficient knowledge, protect tour participants from criminal or drug-related risks, and prevent consumer fraud by unqualified or panhandling guides.
- Plaintiffs sued under the First Amendment seeking declaratory and injunctive relief, nominal damages, and attorneys’ fees, arguing the licensing scheme is an unconstitutional content-based restriction on speech.
- The court considered cross-motions for summary judgment; facts were largely undisputed and the question was the legal characterization and constitutionality of the ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the tour-guide license regulation is a regulation of speech (content-based) or conduct (content-neutral) | The definition and enforcement interpretation show the ordinance targets speech (explaining points of interest), making it content-based | The ordinance on its face regulates the act of "conducting tours for hire"; any reference to speech is incidental and justified by noncontent aims (safety, consumer protection) | The scheme is content-neutral: it targets conduct (guided tours for hire) and is justified without reference to message/content |
| Applicable level of scrutiny | If content-based, strict scrutiny should apply | If content-neutral, intermediate scrutiny (O'Brien/Time, place, manner) applies | Court treated scheme as content-neutral and applied intermediate scrutiny |
| Whether the written testing requirement is narrowly tailored to further a substantial government interest | Plaintiffs argue the test improperly regulates speech or is not narrowly tailored to any substantial interest | City says testing ensures a minimum competency so consumers receive the service they paid for and prevents fraud; testing effectively screens out unqualified providers | The testing requirement furthers a substantial interest in consumer protection/tourism quality and is narrowly tailored; it passes intermediate scrutiny |
| Whether drug testing, fingerprinting, and background checks are narrowly tailored to safety interests | Plaintiffs contend fingerprinting/biennial requirements are overbroad and not uniformly applied to comparable professions | City contends these measures protect public safety and prevent exploitation of vulnerable tourists; fingerprinting is a reasonable method for reliable background checks | The background-check and drug-testing requirements serve substantial safety interests and are reasonably tailored; they pass intermediate scrutiny |
Key Cases Cited
- United States v. Stevens, 559 U.S. 460 (recognizing broad First Amendment protection against content-based restrictions)
- Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (discussing content- and viewpoint-based distinctions)
- Service Employees International Union, Local 5 v. City of Houston, 595 F.3d 588 (5th Cir.) (describing content-based regulation test)
- Horton v. City of Houston, 179 F.3d 188 (5th Cir.) (content-neutral analysis when regulation is justified without regard to speech content)
- United States v. O'Brien, 391 U.S. 367 (establishing intermediate-scrutiny test for content-neutral regulations)
- Ward v. Rock Against Racism, 491 U.S. 781 (narrow tailoring/alternative channels requirement under intermediate scrutiny)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (distinguishing regulations that directly restrict communicative conduct)
- Citizens United v. Federal Election Commission, 558 U.S. 310 (government cannot broadly restrict access to information sources)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (plurality on government restrictions on purely informational speech)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (addressing content-based restrictions on sale or dissemination of information)