Free to Speak for a Living

Charleston, South Carolina—and the whole country—got a little bit freer this August when a federal judge struck down that city’s licensing requirement for tour guides.

Before IJ got involved in Charleston, people who were paid to tell stories to tourists could be thrown in jail for a month unless they first passed a 200-question test on topics city officials deemed important. After a four-day, 14-witness trial held this past spring, the court ruled that these burdens on speech violate the First Amendment.

The ruling is a massive victory for IJ’s clients like Kim Billups, who is now free to give in-character tours in her authentic antebellum costume. It is also a powerful illustration of what we mean when we talk about IJ’s “strategic litigation”—and why that strategy matters so much.

The Charleston case, like our other tour guide cases, is part of IJ’s yearslong effort to protect the rights of people who speak for a living. Thanks in part to the internet, more and more people are earning their living by communicating their knowledge or advice. (You can read about a few of these people in the story about IJ’s new case in Mississippi.) Predictably, government officials have responded by cracking down on these people, arguing that so-called professional speech is unprotected by the First Amendment. And, outside of IJ cases, courts have largely agreed, finding that this kind of speech is, at best, less protected than ordinary speech. Our mission is to convince courts that the First Amendment applies to all speech—no matter what the government calls it.

From the perspective of our opponents in Charleston, the ruling probably seemed like a lucky break for us. But it was a lucky break 10 strategic years in the making.

As readers of Liberty & Law know, our efforts have led to many courtroom victories. Each of those victories has also been a building block, designed both to move the law in our direction and to vividly illustrate the dangers of allowing government to wield this kind of power, especially when it’s used on behalf of entrenched interests, which is so often the case.

In this case, capitalizing on our strategic investment meant a battle on many fronts: Even as we started gearing up for our trial in Charleston, we were simultaneously writing a friend-of-the-court brief to the U.S. Supreme Court in a case called NIFLA v. Becerra. That brief asked the Court to reject the lower courts’ approach and instead hold that professional speech is protected by the First Amendment, using IJ cases to illustrate why that principle is so important.

Just a week before our pretrial conference in Charleston, the Supreme Court heard argument in the NIFLA case, and lawyers for the government faced sharp questions from the Justices that specifically invoked IJ’s arguments and our past cases. And only a few weeks after trial—a trial during which Charleston’s lawyers repeatedly stressed that tour guides were “professionals” and thus operating outside the First Amendment—the Supreme Court issued an opinion resoundingly adopting IJ’s arguments and holding that the First Amendment protects “professionals” just as much as it does anyone else.

From the perspective of our opponents in Charleston, the ruling probably seemed like a lucky break for us. But it was a lucky break 10 strategic years in the making.

We are already moving aggressively to put the Court’s NIFLA decision to use in ongoing cases and in litigation in development. Making luck of the sort that helped win our case in Charleston is strategic public interest litigation in action.