Edwards v. Dist. of Columbia, s. 13–7063

Citation755 F.3d 996
Decision Date27 June 2014
Docket Number13–7064.,Nos. 13–7063,s. 13–7063
PartiesTonia EDWARDS and Bill Main, Appellants v. DISTRICT OF COLUMBIA, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

Held Unconstitutional

D.C. Official Code, 2001 Ed. § 47–2836Robert J. McNamara argued the cause for appellants. With him on the briefs were William H. Mellor III and Robert W. Gall. Paul M. Sherman entered an appearance.

Erik Jaffe and Ilya Shapiro were on the brief for amicus curiae Cato Institute in support of appellants.

Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: HENDERSON, BROWN and WILKINS, Circuit Judges.

Opinion for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge:

This case is about speech and whether the government's regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government's counsel literally speechless, we are constrained to disagree.

In Washington, D.C., it is illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so—that is, unless you pay the government $200 and pass a 100–question multiple-choice exam. The District requires that certain tour guides obtain a tour-guide license, which can be procured by paying application, license, and exam fees totaling $200, and passing the exam, of course. Operating as a paid, unlicensed tour guide is punishable by up to 90 days in jail or a fine of up to $300, or both. Believing the licensing scheme to be an unconstitutional, content-based restriction of their First Amendment rights, Appellants, Tonia Edwards and Bill Main, refused to comply and filed suit in district court. The court ultimately upheld the regulations, reasoning the scheme placed only incidental burdens on speech that were no greater than necessary to further the District's substantial interest in promoting the tourism industry. Finding the record wholly devoid of evidence supporting the burdens the challenged regulations impose on Appellants' speech, we reverse and remand.

I

Edwards and Main own and operate “Segs in the City,” a Segway-rental 1 and tour business located in Washington, D.C., as well as in Annapolis and Baltimore, Maryland. As part of their business model, Appellants rent Segways to individuals for private use and provide tours to small groups of people that rent Segways. In D.C., Segs in the City provides a variety of tours along the city's streets and sidewalks. During the summer months, about half of the tours are led by either Edwards or Main; the rest are conducted by seasonal independent contractors that Appellants hire.

A Segs in the City tour has two phases. First, a tour leader trains a group of no more than ten people how to ride a Segway and how to comply with local traffic and safety regulations. Then, after mastering their newfangled transport, customers depart with their tour guide for one of several established tour routes. Each tour lasts between one and three hours, and Segs in the City operates up to five tours a day, seven days a week. Tour guides use radio earpieces to maintain constant communication with their customers. Through their earpieces, tour-group members are advised where the group is going next and entertained with stories about nearby points of interest.

A

Several laws govern various aspects of these activities. First, Segs in the City is required to have a general business license. SeeD.C.Code § 47–2851.03d. Additionally, the city has rules governing the use of Segways. SeeD.C. Mun. Regs. tit. 18, § 1200 et seq. Appellants and their employees comply with both. What Edwards and Main object to, however, are District regulations that levy civil and criminal penalties for conducting a tour without first taking and passing a multiple-choice exam. D.C. law prohibits tour guides from receiving compensation to “guide or escort any person through or about the District of Columbia, or any part thereof, unless he shall have first secured a license so to do.” D.C.Code § 47–2836.

Implementing regulations clarify the District's interpretation of what it means to be a “sightseeing guide.” A “sightseeing tour guide” is anyone who either (1) “engages in the business of guiding or directing people to any place or point of interest in the District” or (2) “who, in connection with any sightseeing trip or tour, describes, explains, or lectures concerning any place or point of interest in the District to any person.” D.C. MUN. REGS. tit. 19, § 1200.1. The regulations specifically govern Segway tours. See id. § 1201.3 (prohibiting unlicensed entities from conducting “for a fee” tours on “self-balancing personal transport vehicles”). Violators may be subject to both a $300 fine and 90 days in prison. SeeD.C. Mun. Regs. tit. 19, § 1209.2; see alsoD.C.Code § 47–2846.

Altogether, five requirements must be satisfied to obtain a tour-guide license. SeeD.C. Mun. Regs. tit. 19, § 1203. The applicant must (1) be at least eighteen years old, id. § 1203.1(a); (2) be proficient in English, id. § 1203.1(b); (3) not have been convicted of certain specified felonies, id. § 1203.1(c); (4) make a sworn statement that all statements contained in his or her application are true and pay all required licensing fees, id. § 1203.2; and (5) pass an examination “covering the applicant's knowledge of buildings and points of historical and general interest in the District,” id. § 1203.3.

Appellants take particular exception to the fifth requirement—the examination. Consisting of 100 multiple-choice questions, applicants must master subject-matter from the following fourteen categories: Architecture; Dates; Government; Historical Events; Landmark Buildings; Locations; Monuments and Memorials; Museums and Art Galleries; Parks, Gardens, Zoos, and Aquariums; Presidents; Sculptures and Statues; Universities; Pictures; and Regulations. Applicants are further advised that questions are formed from data found in nine publications. There are multiple versions of the exam, and applicants must obtain a minimum score of 70 to pass.

B

Contending the regulations' restriction on their speech violates the First Amendment, Edwards and Main filed a motion for preliminary injunction in the district court. See Edwards v. District of Columbia, 765 F.Supp.2d 3, 6 (D.D.C.2011). The District opposed Appellants' motion for injunctive relief and sought to have the suit dismissed. Id. The district court denied the preliminary injunction, concluding Appellants were unlikely to prevail on the merits because the regulations are “unrelated to the content of expression and have, at most, an incidental effect on some speakers or messages but not others.” Id. at 15–16. The district court denied without prejudice the District's motion to dismiss, however, affording the parties an opportunity to conduct limited discovery. Id. at 20.

At the close of discovery, the parties filed cross-motions for summary judgment. Once again siding with the District, the trial judge determined the “licensing scheme targets the non-expressive conduct of guiding, directing and, more broadly, escorting, a commercial sightseeing trip or tour, and only incidentally burdens speech.” Edwards v. District of Columbia, 943 F.Supp.2d 109, 118 (D.D.C.2013). Then, applying intermediate scrutiny, the trial judge held the regulations are narrowly tailored to further at least two “substantial and legitimate regulatory interests”: (1) providing for “the general welfare of society by attempting to ensure that those with serious felonies on their records are not guiding or directing tourists and residents around the District”; and (2) “promoting the tourism industry by attempting to ensure that those who guide or direct people around the District have, at least, some minimal knowledge about what and where they are guiding or directing people to.” Id. at 122.

Consequently, the district court granted the District's motion for summary judgment, and Appellants filed a timely notice of appeal.2

II

We review de novo a district court's grant of summary judgment, viewing all evidence in the light most favorable to the non-moving party. Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.Cir.2013). On appeal, Appellants present two principal arguments. First, the district court erred in holding that the tour-guide regulations are a restriction on conduct instead of a content-based restriction on speech. Second, even if content- neutral, there is an insufficient evidentiary basis to conclude the regulations further the District's interest in addressing actual problems. Acceding to the former claim will trigger strict scrutiny. We need not determine whether strict scrutiny applies, however, because assuming the regulations are content-neutral, we hold they fail even under the more lenient standard of intermediate scrutiny.3

As a preliminary matter, we note Edwards and Main lodged both a facial and as-applied challenge to the regulations. To succeed in a typical facial attack, Appellants must establish “that no set of circumstances exists under which [the challenged regulations 4] would be valid or that the statute lacks any plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). In the First Amendment context, the Supreme Court recognizes “a second type of facial challenge,” under which a law may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct....

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