Old City tour guides say licensing law violates free speech
Three Old City tour guides tried to persuade a panel of U.S. Court of Appeals judges on Tuesday that a 2008 city law to require licensing and testing of guides violates their First Amendment rights to free speech.
Three Old City tour guides tried to persuade a panel of U.S. Court of Appeals judges on Tuesday that a 2008 city law to require licensing and testing of guides violates their First Amendment rights to free speech.
The law has never been enforced because of budget cuts and is not likely to be any time soon. In August 2009, U.S. District Judge Jan DuBois dismissed the guides' complaint, ruling that their case was moot because Philadelphia didn't have the money to create tests or issue licenses. (The judge did not rule on the constitutionality of the law.)
The law would require guides to pay a $25 annual licensing fee and pass a written test. Violations are punishable by fines of up to $300.
The law was prompted by part-time guide and retired Daily News reporter Ron Avery to ensure guides had "minimum competency." Other cities, including New York and Washington, test and license their guides.
In September 2009, the three guides - Mike Tait, Ann Boulais and Josh Silver - appealed DuBois' decision to the U.S. Court of Appeals here.
The focus of the three-judge appellate panel Tuesday was whether the plaintiffs' case was premature to warrant a constitutional challenge and if the city would ever enforce the law.
Robert McNamara, an attorney with the Arlington, Va.-based Institute for Justice, who is representing the guides, argued that the city's budget priorities cannot "trump the demands" of the U.S. Constitution.
"Government officials aren't allowed to just hide in the bushes until they feel like jumping out and taking away your rights," he said. "The tour-guide licensing law violates the First Amendment, and it should be struck down."
McNamara argued that since the city won't disavow enforcement at some later date, the guides' constitutional challenge is not premature.
But city attorney Elise Bruhl argued that since there is no "credible threat" of enforcement, the law has "no effect on the plaintiffs' behavior."
"If you were the plaintiffs, how would you know when to challenge [the constitutionality] of [the ordinance]?" asked Judge Anthony Scirica.
Bruhl suggested the plaintiffs' challenge was not "ripe" until the city publicly announced that guides would have to pass a test and obtain a license, that officials had implemented a process to enforce the law and were moving forward with it.
Bruhl asked the appellate panel to affirm DuBois' decision.
If the appellate panel determines the guides' case is ripe, the city wants the panel to send the case back to district court to rule on the merits of plaintiffs' claims. The judges did not say when they would rule.
