Can a City's Budget Priorities Trump the Constitution?

On Tuesday the Institute for Justice went to federal court to find out.

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Two years ago IJ teamed up with three Philadelphia tour guides to file a major First Amendment lawsuit seeking to vindicate the freedom to speak in Philadelphia.

Ann Boulais, Mike Tait and Josh Silver sued because officials passed a law making it illegal for anyone like them to give a tour of much of the city’s downtown area without first passing a test and obtaining a government license–that is, getting the government’s permission to speak.

The case immediately sparked nationwide interest. Robert McNamara, the First Amendment expert who filed the case, appeared on shows like All Things Considered and Marketplace to point out that the Constitution protects our right to communicate for a living, whether we are speaking out as bloggers, journalists, stand-up comedians or tour guides.

The Wall Street Journal ran a front-page feature:

Feeling tyrannized, Ms. [Ann] Boulais and two fellow guides summoned the constitution’s protections by suing the city in Philadelphia Federal court. The history test, they claimed, breached the Bill of Rights — a set of rules, as any good guide should know, that took effect while Congress sat here at 6th and Chestnut streets, on Dec. 15, 1791.

Of course, the guides are quick to point out that officials are violating fundamental American liberties in the very place those liberties were first enshrined in our Constitution.

In 2009, a year after the suit was filed, the city asked a federal judge to dismiss the case. Their reason? They had not allocated money in their 2009 budget to enforce the law right away.

Robert McNamara, who also authored a study examining the state of entrepreneurship in Philadelphia, doesn’t find the city’s explanation compelling. He took the case to the Third Circuit Court of Appeals this week to clarify that Philadelphia’s budget priorities cannot trump the Constitution. As he says in the above video:

Philadelphia’s tour guides have the right to speak freely without having to worry whether the city is going to start enforcing its licensing requirement in six weeks, six months or a year. The Institute for Justice is determined to vindicate the First Amendment rights of ordinary Philadelphians to talk to each other about their city and its history. And to make clear to city officials, in court, that they do not have the power to fine people for unauthorized talking.

Unfortunately, Philadelphia is not alone in its crackdown on tour guides. Robert filed a similar suit in Washington DC a few months ago. In the nation’s capital, talking about the Bill of Rights can land you in jail for 90 days.

Robert pointed out in the Washington Post that these tour guide licensing schemes are part of a larger, national problem:

In the past 50 years, there has been an explosion of laws that require people to get a license before they join the workforce. In the 1950s, only about one out of every 20 Americans needed a license to pursue the occupation of their choice. Today, that number is one out of every three.

Thankfully, the U.S. Constitution says that Americans have a right to earn an honest living free from unreasonable regulations. And protecting this right to economic liberty is one of the founding principles of the Institute for Justice.

Click here for more on the lawsuit. The Institute for Justice is also online at facebook, You Tube and twitter.