Kagan v. City of New Orleans, Civil Action No. 11–3052.

• Citation: 957 F.Supp.2d 774
• Decision Date: 09 July 2013
• Docket Number: Civil Action No. 11–3052.
• Parties: Candace KAGAN, et al., Plaintiffs v. CITY OF NEW ORLEANS, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

957 F.Supp.2d 774

Candace KAGAN, et al., Plaintiffs

v.CITY OF NEW ORLEANS, Defendant.

Civil Action No. 11–3052.

United States District Court, E.D. Louisiana.

July 9, 2013.

Mark Emerson Hanna, Mouledoux, Bland, Legrand & Brackett, LLC, New Orleans, LA, Matthew R. Miller, Austin, TX, Paul M. Sherman, Arlington, VA, for Plaintiffs.

James Bryan Mullaly, Kimlin Smith Lee, Richard Felipe Cortizas, Sharonda R. Williams, City Attorney's Office, New Orleans, LA, for Defendant.

ORDER AND REASONS

SUSIE MORGAN, District Judge.

Before the Court are cross-motions for summary judgment filed by plaintiffs Candance Kagan, Mary LaCoste, Joycelyn Cole, and Annette Watt (together, “Plaintiffs”), and defendant City of New Orleans (the “City”). ¹ For the following reasons, the City's motion is GRANTED and Plaintiffs' motion is DENIED.

BACKGROUND

Plaintiffs are tour guides in New Orleans, where they give walking tours of historical sites and points of interest. Some of their tours are educational, focusing on topics such as the history of the French Quarter; some are fanciful, focusing on topics like ghosts and vampires; and some are mostly gustatory or libationary, taking advantage of New Orleans' many restaurants and bars.² Participants pay for the tours at issue by paying either Plaintiffs or the organizations for which they work.³ Like New York, the District of Columbia, Philadelphia, Savannah, Charleston, and the National Park Service, the City requires Plaintiffs to have a license when, in this way, they “conduct tours for hire.” N.O. City Code § 30–1551.⁴

In order to obtain a license, prospective tour guides must pay a $50 fee, pass a written examination, clear a drug test, and undergo fingerprinting and a background check to ensure that they have not been convicted of a felony in the preceding five years.⁵ In order to maintain the license, tour guides must pay a $20 fee and successfully complete the drug test and background check, which requires another set of fingerprints, every two years.⁶ The City asserts that this licensing scheme is necessary to ensure that: (1) tour guides have “sufficient knowledge to conduct tours of points of interest in the City”; (2) tour guides have no “criminal backgrounds that would pose a threat of harm or danger to tour groups”; (3) members of tour groups are protected from “behavior that may be associated with illicit drug use”; and (4) “unqualified individuals purporting to conduct reputable tours ... [do not] swindle trusting tourists out of money.” ⁷

Plaintiffs believe those justifications are insufficient under the First Amendment, and they ask the Court for a declaratory judgment that the City's licensing scheme violates their right to free speech, both facially and as applied. They also request a permanent injunction prohibiting the City from enforcing the licensing requirement, $1.00 in nominal damages, and attorneys' fees.⁸ The City requests a determination that its licensing scheme is constitutional under the First Amendment.⁹

STANDARD OF LAW

Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ ” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir.1991). If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden then shifts to the non-moving party to show that a genuine issue of material fact exists. Id. at 322–23, 106 S.Ct. 2548. Once the burden has shifted, the non-moving party must direct the Court's attention to something in the pleadings or other evidence in the record that sets forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist. Id. at 324, 106 S.Ct. 2548.

If the dispositive issue is one on which the non-moving party will bear the burden of proof at trial, however, the moving party may satisfy its burden by simply pointing out that the evidence in the record is insufficient with respect to an essential element of the non-moving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The nonmoving party must then respond, either by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party” or by coming forward with additional evidence. Celotex, 477 U.S. at 332–33 & 333 n. 3, 106 S.Ct. 2548.

“An issue is material if its resolution could affect the outcome of the action.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005). When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). All reasonable inferences are drawn in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir.2002). In this case, the facts are not in dispute—only which facts are relevant and whether the parties have met the burdens of proof they would have at trial.

ANALYSIS

The First Amendment provides that Congress “shall make no law ... abridging the freedom of speech.” U.S. CONST. amend. I. The Supreme Court has interpreted this to mean that “ ‘as a general matter, ... the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). There is no suggestion that the City's licensing regime operates to restrict speech because of its message or ideas, what is otherwise called viewpoint discrimination. Plaintiffs instead argue that the licensing scheme is a content-based or subject-matter restriction on speech, and so it may be upheld only if “necessary to serve a compelling state interest and ... narrowly drawn to achieve that end.” Serv. Empls. Int'l Union, Local 5 v. City of Houston, 595 F.3d 588, 596 (5th Cir.2010) (internal quotation marks omitted). The City asserts that its licensing scheme is content neutral, and so it may be upheld so long as it is “narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of communication.” Id.

I. Content Neutrality

In the first instance, it is unclear the City's licensing scheme regulates speech at all. The City Code provision imposing the license requirement makes no reference to speech and merely states that “No person shall conduct tours for hire in the parish who does not possess a tour guide license issued by the department of safety and permits.” N.O. City Code § 30–1551. On its face, this regulates “conduct[ing] tours for hire,” not speech. In order to find a reference to speech, it is necessary to look to the City Code's definition of “tour guide,” which is “any person duly licensed by the department of safety and permits to conduct one or more persons to any of 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.” N.O. City Code § 30–1486. But that definition in Section 30–1486 does not itself impose any restrictions on speech or conduct, and the licensing requirement in Section 30–1551 does not incorporate the defined term “tour guide”—by, for example, stating that “ ‘Tour guides' must possess a license when working for hire” or “No ‘tour guide’ shall conduct tours for hire without a license.” The licensing requirement in Section 30–1551 instead applies to any “person” who “conduct[s] tours for hire.” On its face, therefore, the portion of the City Code imposing the licensing requirement applies to conduct, not speech.

Plaintiffs have nevertheless adduced competent summary judgment evidence that the City's definition of “conduct[ing] tours for hire” in Section 30–1551 makes reference to speech in operation, because the relevant officials use language similar to the speech-based definition of “tour guide” in Section 30–1486 to inform what it means to “conduct” tours for hire and, thus, to determine when a license is required.¹⁰ That the licensing scheme requires a license when points of interest and historic sites are explained or discussed is not sufficient to render it a content-based regulation of speech, however. “A content-based regulation has been defined as one that creates distinctions between ‘favored speech’ and ‘disfavored speech.’ ” Serv. Empls. Int'l Union, 595 F.3d at 596. A content-based regulation “also can be identified when it creates a ‘substantial risk of eliminating certain ideas or viewpoints' from the public forum.” Id. (quoting Horton v. City of Houston, Tex., 179 F.3d 188, 193 (5th Cir.1999)). “If, on the other hand, the regulation is justified without reference to the content of the speech or serves purposes unrelated to the content,...