Free speech opposition to rule errs factually, logically
Even this space will make a mistake once in a blue moon, and that even the best sometimes do so should be kept in mind when evaluating the incorrect rationale by which the normally-incisive Institute for Justice tries to oppose regulation by New Orleans regarding licensing of tour guides.
To say the present rule restricts speech errs both factually and logically. While New Orleans should change the ordinance to take away the compulsory and insert informative aspects about it, if there’s any genuine need for it at all, at the very least it should resist any challenge to it based upon these grounds.
For many years the city has required licensing of tour guides, an ordinance spottily if ever enforced until very recently. The city maintains the rules, which include passing a knowledge exam administered by the New Orleans Tourist and Convention Commission, completing satisfactorily a criminal background check, requiring a fee, and wearing of a badge, designed to ensure the safety of and provide high quality service to those contracting for a guided tour for hire. Some guides declare the rules intrusive and a restraint of trade, but local governments through powers granted to the states by the U.S. Constitution have the power to regulate in this area.
However, the Institute argues differently in its donated defense of a few guides challenging the ordinance, arguing that this constitutes a freedom of speech question. They don’t want to submit to the background checks, which they don’t see as reasonable especially as they have to pay for these in addition to the license fee, and the Institute argues that the marketplace will sort out whether the public will pay for guides that don’t seem to be worth it. Hence, in this view the city has no compelling argument to override free speech concerns, where government may restrict in this instance only when the health and safety of the public could be threatened.
But this line of reasoning somehow misses the obvious: no one has a right to be paid for their free speech. New Orleans is not limiting speech, it merely requires that one have a license to be paid while expressing it in a certain context. If these guides wish to exercise their right, they are free to do so to volunteers wishing to listen, volunteering their knowledge. The critics’ argument conveniently sidesteps the fact that expressing that information is no way dependent upon whether an economic exchange occurs; rather, it is within the speakers own volition whether to engage in it dependent upon and exchange.
One could take issue about the wisdom of the policy, about whether it needlessly restricts the market, but that is a policy, not constitutional question. And in the interest of promoting economic activity, instead of banning unlicensed guides from profiting, the city instead could allow them to hawk their wares, provided that the unlicensed state to prospective customers that they are unlicensed and that licensed guides have to pass the knowledge exam and come up clean on a background check. Then the consumer can judge whether he thinks the rate worth it in comparison to what he might expect from a licensed guide, and even perhaps shop around.
Posted by Jeff Sadow at 16:25