Should guides have to pass a multiple-choice history test, background check and drug screen to be eligible to provide tours in cities?
The Supreme Court could be taking up that question soon. The Institute for Justice has asked the Court to consider an important First Amendment case from New Orleans, which requires its tour guides to pass these tests before they can provide tours of the Crescent City.
The D.C. Circuit Court of Appeals struck down a similar law in the District of Columbia in June, but the Fifth Circuit Court of Appeals upheld the New Orleans law the same month.
These licensing requirements are a problem for numerous reasons. Clearly, these laws implicate First Amendment rights to free speech. By imposing requirements on citizens before they can speak and penalizing them for noncompliance, these laws chill speech and must meet a high burden to pass constitutional muster.
These types of laws also stifle economic growth and innovation. It seems obvious that occupational licensing requirements make some sense in highly skilled fields such as law or medicine, where the state has a significant interest in ensuring high standards of professionalism.
But these requirements have infected many other occupations that don’t implicate health, safety or morals in any way, such as floral arrangers, casket manufacturers, tour guide operators, hair-braiders and even interior designers. are only some of the types of business that have been regulated for no good reason. Most infuriating is that these barriers mostly prevent low-income workers from seizing economic opportunities.
So why would locales pass these laws? Simple, protectionism. While protectionism is not per se unconstitutional, it is not a good reason for a law. In the absence of more compelling reasons, regulations designed purely to increase entry barriers to a profession should be struck down.
For example, until the law was ruled unconstitutional, prospective tour guides in the District of Columbia had to pay $200 to the D.C. Department of Consumer and Regulatory Affairs to take a test and another $400 to get training from “experts” on the test. These fees and the test were completely unnecessary, a fact the D.C. Circuit noted when it struck down the law.
Even if one agrees consumers should be protected from a bad tour experience, can’t the free market handle that? Bad tours will get bad reviews on Yelp, Trip Advisor and similar websites, and customers will flock to those who are known to give good tours. Also, trade groups could get involved and certify tour groups or guides without the heavy hand of government.
The wealth of information available today means government has even less need to regulate such matters. But don’t count on that stopping established “professional” groups from getting together and lobbying their local governments to stop would-be competitors.
Perhaps the Supreme Court eventually will take note.
