Billups v. City of Charleston
The Plaintiffs were aspiring tour guides in Charleston, South Carolina. Pursuant to the Charleston’s Tour Guide Licensing Ordinance (the “Ordinance”) before leading a paid tour through Charleston, a prospective guide must obtain a license requiring the passage of a 200-question written examination costing $50. Those conducting paid tours of Charleston without a license are subject to imprisonment and a fine. The Plaintiffs did not successfully pass the examination.
Plaintiffs challenged the Ordinance and its mandatory licensing scheme as an unconstitutional restriction of their First Amendment rights. The district court agreed and declared the Ordinance unconstitutional on the basis that the Ordinance failed to satisfy intermediate scrutiny because it was not narrowly tailored.
Plaintiffs sought a declaratory judgment. In its Initial Order of July 1, 2016, the district court denied both the Plaintiffs’ request for a preliminary injunction and the city’s motion to dismiss. The district court concluded that (1) the Ordinance burdens protected speech and is thus subject to First Amendment scrutiny, and (2) the city has a significant interest in protecting Charleston’s tourism industry and visitors. The court concluded that because a tour guide’s speech is their product, the Ordinance’s mandate that a guide obtain a license before selling that product burdens speech and thus implicates the First Amendment.
In the Trial Order, the district court reiterated that the Ordinance burdened protected speech and was thus subject to First Amendment scrutiny. The district court applied intermediate scrutiny, requiring the city to demonstrate that protecting Charleston’s tourism industry was a significant interest, that the Ordinance is narrowly tailored to serve that interest, and that the Ordinance leaves open ample alternative channels of communication. The court determined that the Ordinance was not narrowly tailored because it did not provide evidence that it actually tried or considered less-speech-restrictive alternatives (such as using a voluntary tour guide certification program similar to those used by other local governments throughout the country) before enacting the Ordinance, as required by the Court’s decision in Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015).