The Institute for Justice updates followers on its efforts to overturn a licensing law in Philadelphia that requires tour operators to seek approval from the city for their operations through a separate license from the normal business licensing requirements. We covered IJ’s efforts to expose this government overreach in Washington DC four months ago, but now the first test case will be heard by a federal appellate court. The question will be whether a state or local government can create what is, in essence, a license to communicate with other people in light of the First Amendment:
There could be an argument that says the First Amendment exists to protect political speech, but in practice that distinction evaporated decades ago. When communities tried to ban strip joints, courts held that people had a right to get naked in public based on the First Amendment in what is clearly a commercial context. However, courts have allowed zoning laws to keep such establishments in particular areas and away from schools and churches, at least thus far and when reasonably crafted, and some states also restrict liquor licenses based on the level of nudity allowed in the clubs (California, for instance). They don’t, however, require a license specific to staging nudity.
This will be an interesting case to follow. The imposition of licensing is usually prefaced on the need to keep consumers from being defrauded, but mainly they serve as barriers to entry for smaller operators in any field while protecting the larger players. The tour-guide industry could police itself through voluntary associations that require particular types of expertise, training, and consumer protection rather than have the government impose that through unnecessary — but revenue-producing — licensing regimes.