- Associated Press - Monday, March 28, 2016

CHARLESTON, S.C. (AP) - Charleston’s ordinance requiring tour guides to have a license has nothing to do with freedom of speech, it’s about regulating business, attorneys for the city say.

The dispute has been playing out in several historic cities nationwide. In Charleston, three plaintiffs sued in January saying that the city licenses granted only to those who pass a 200-question written exam and an oral exam violate First Amendment rights of freedom of speech.

The lawyers for the city disagreed.

“Plaintiffs are wrong,” attorneys for the city wrote in a response filed this month. “With or without a tour guide license, plaintiffs may communicate whatever message about the City of Charleston they want.”

They note that no license is required for those who give free tours and “the license requiring minimum qualifications is only necessary if tour guides seek to charge for their services.” The 12-page response adds that “the plaintiffs’ underlying purpose for becoming a tour guide is to earn money, not engage in free speech.”

In a response, attorneys for the Institute of Justice, which represents the three plaintiffs, argue that whether tour guides get paid for their speech is immaterial.

“The Supreme Court has made it clear that the degree of First Amendment protection is not diminished merely because the newspaper or the speech is sold rather than given away,” they wrote.

Federal courts have split on whether requiring tour guides to have licenses violates free speech. An appeals court agreed with a lower court decision upholding a New Orleans license requirement while the courts have thrown out the District of Columbia requirement. After a lawsuit challenging licenses was filed in Savannah, Georgia, the city council voted last October to repeal a requirement for a written exam.

Attorneys for Charleston note that in upholding the New Orleans ordinance, the courts found that the city interest was not in regulating what was said on a tour but “making sure tour group participants get what they pay for,” namely a safe tour “conducted by someone with a minimum quantum of professionalism.”

If the license only related to visitors getting “some official version of the truth,” the court found, New Orleans would have prevented vampire and ghost tours there. Ghost tours are also offered by guides in Charleston.

U.S. District Judge David Norton has set an April 19 hearing in the Charleston lawsuit.

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