Kimberly Billups v. City of Charleston
961 F.3d 673
4th Cir.2020Background
- Charleston ordinance requires a tour-guide license to lead paid tours in the city's historic districts; license requires passing a 200-question written exam based on a 483‑page manual, paying fees, and renewing a business license; penalties include fines and jail.
- The Historic Charleston Foundation prepares the exam questions and manual; the City adopted them without modification.
- Plaintiffs Billups, Nolan, and Warfield are current or prospective guides who failed or were delayed by the exam requirement and sued the City claiming a First Amendment violation.
- The district court assumed the Ordinance was content‑neutral, applied intermediate scrutiny, and found the City failed narrow‑tailoring because it did not seriously try or consider less‑speech‑restrictive alternatives before adopting the Ordinance.
- The City appealed; the Fourth Circuit affirmed, holding the Ordinance burdens protected speech and fails intermediate scrutiny for lack of narrow tailoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ordinance burdens protected First Amendment speech | Ordinance bars unlicensed guides from speaking on paid tours in public forums, so it directly burdens speech | Ordinance is a business/conduct regulation with only incidental impact on speech; unpaid guides may speak | Held: Ordinance burdens protected speech; First Amendment scrutiny applies |
| Level of scrutiny to apply (content‑based v. content‑neutral) | Plaintiffs argued content‑based (strict scrutiny) alternatively claimed it fails intermediate scrutiny | City argued it is content‑neutral and survives intermediate scrutiny | Court assumed content‑neutral and applied intermediate scrutiny (declined to decide content question) |
| Whether the Ordinance is narrowly tailored under intermediate scrutiny | Ordinance is overbroad and City failed to consider less‑restrictive alternatives (e.g., deceptive‑solicitation/business‑license enforcement or a voluntary certification) | City argued alternatives would be ineffective or impractical and the burden on speech is slight | Held: Not narrowly tailored. City failed to present evidence it actually tried or seriously considered less‑speech‑restrictive alternatives; Ordinance unconstitutional |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (establishes time, place, manner test: content‑neutral, narrowly tailored to significant interest, ample alternatives)
- McCullen v. Coakley, 573 U.S. 464 (2014) (government must seriously consider less intrusive alternatives; uncorroborated post‑hoc justifications insufficient)
- Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015) (requires government to present actual evidence it tried or considered less‑speech‑restrictive means to satisfy narrow tailoring)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (recognizes that laws restricting use/dissemination of information implicate speech)
- Watchtower Bible & Tract Soc’y of N.Y. v. Village of Stratton, 536 U.S. 150 (2002) (permits as prior restraints impose objective burdens on speech)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based regulation analysis under First Amendment)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (laws aimed at conduct can trigger First Amendment scrutiny when conduct consists of communicating a message)
- Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014) (analyzed mandatory tour‑guide licensing under First Amendment scrutiny)