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.
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