Kagan v. City of New Orleans

• Decision Date: 02 June 2014
• Docket Number: No. 13–30801.,13–30801.
• Citation: 753 F.3d 560
• Parties: Candance KAGAN; Mary Lacoste; Joycelyn M. Cole, erroneously named as Jocelyn M. Cole; Annette Watt, Plaintiffs–Appellants v. CITY OF NEW ORLEANS, LOUISIANA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

753 F.3d 560

Candance KAGAN; Mary Lacoste; Joycelyn M. Cole, erroneously named as Jocelyn M. Cole; Annette Watt, Plaintiffs–Appellants

v.CITY OF NEW ORLEANS, LOUISIANA, Defendant–Appellee.

No. 13–30801.

United States Court of Appeals, Fifth Circuit.

June 2, 2014.

Matthew R. Miller (argued), Institute for Justice Texas Chapter, Austin, TX, Mark Emerson Hanna, Esq., Special Counsel, Mouledoux, Bland, Legrand & Brackett, L.L.C., New Orleans, LA, Paul M. Sherman, Institute for Justice, Arlington, VA, for Plaintiffs–Appellants.

Sharonda R. Williams, Esq., Adam Swensek (argued), City Attorney's Office, New Orleans, LA, Ilya Shapiro, Esq., Cato Institute, Washington, DC, Luke Wake, Sacramento, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, JONES, and GRAVES, Circuit Judges.^*

REAVLEY, Circuit Judge:

The City of New Orleans requires those who conduct tours for hire in the City to have a tour guide license. Four tour guides object to the license requirement on the ground that it violates their First Amendment rights and seek a declaratory judgment and injunction for relief. The district court granted summary judgment for the City, and we affirm.

The New Orleans Code requires the license for a person to charge for tours to the City's points of interest and/or historic buildings, parks or sites, for the purpose of explaining, describing or generally relating the facts of importance thereto. To obtain the license, the applicant must pass an examination testing knowledge of the historical, cultural and sociological developments and points of interest of the city, must not have been convicted of a felony within the prior five years, pass a drug test, and pay a $50 fee when first applying or $20 when renewing after two years. Violators are subject to punishment by up to five months imprisonment and $300 in fines.

Reviewing the law facially, we see its purpose to be clear. The City wants to promote and protect visitors there as they see and enjoy all of the attractions of New Orleans; its history and sights on to its food and music. Conventions bring thousands there and often program tours of the city. To put it simply, New Orleans thrives, and depends, upon its visitors and tourists. For the benefit of those visitors the City identifies those tour guides who have licenses and are reliable, being knowledgeable about the city and trustworthy, law-abiding and free of drug addiction.

Without contesting that as the only purpose or effect of the law, plaintiffs seek to abolish the license and will thereby defeat the purpose. They urge the First Amendment freedom of speech as the problem. But no fault is found by the City in what tour guides do or say. They themselves want to speak and do the same. When a city exercising its police power has a law only to serve an important governmental purpose without affecting what people say as they act consistently with that purpose, how is there any claim to be made about speech being offended?

The district court of the District of Columbia decided in a similar case to go beyond that question to an intermediate scrutiny review with the same result. Edwards v. District of Columbia, 943 F.Supp.2d 109, 118 (2013). So will we.

The First Amendment prevents government from restricting speech, unless it is unprotected as is obscenity and the promotion of violence. Laws that restrict...