2009-04-30 / Local & State

Federal Judge Weighs Tour Guide Law

By Kathy Matheson ASSOCIATED PRESS WRITER

PHILADELPHIA (AP) - In a courtroom just a block from Independence Hall - the heart of the city's tourist district and the birthplace of the Constitution - a federal judge is weighing whether an ordinance to test and license local tour guides violates the First Amendment.

U.S. District Judge Jan DuBois, who heard arguments Friday, said it's clear that both sides in the litigation want the city's guides to be trustworthy and accurate. The question is whether the city is muzzling free speech by requiring guides to take an exam first.

DuBois deferred a ruling pending submission of additional briefs May 1.

Historical tourism is big business in Philadelphia, and lawyers for the city contend tour guides should have an occupational license similar to that of a real estate agent. But the plaintiffs - three tour guides - say the law unfairly restricts speech, could cause financial hardships and will not result in more accurate tours.

The Philadelphia City Council passed the ordinance last year hoping to ensure tourists aren't misinformed by poorly trained guides who tell them Benjamin Franklin's statue is atop City Hall. (It's a statue of William Penn.) The ordinance requires guides to pay application fees, take a multiple-choice exam and obtain liability insurance, in case a visitor is injured.

Plaintiffs' attorney Robert McNamara argued Friday that the tour guide industry differs from occupations in which someone's words can affect a client's health and safety, such as an attorney giving advice on a guilty plea, or a financial adviser talking about investments.

"If a tour guide tells you Benjamin Franklin was born in 1900, the worst case scenario is that you believe Benjamin Franklin was born in 1900,'' McNamara said. (Franklin actually was born in 1706.)

City Representative Melanie Johnson, whose office is charged with administering the law, testified that officials are nowhere near being able to enforce the ordinance, which has been stayed pending the lawsuit. The city's budget crisis has left her office short-staffed, and the test has not been developed, she said.

Still, Johnson said she intends to enforce the regulations once she has the resources. The city's image and tourist economy depend on good experiences with tour guides, she said.

But McNamara said that, using the city's logic, anyone who conveys information to someone else for compensation might need a license, like a math tutor, a law professor or even an author giving a lecture. And a guide who give tours without a license - who speaks, in essence - could be fined, he said.

Deputy City Solicitor Elise Bruhl noted that guides will not be monitored once they are licensed, and they still are free to say anything they want. The test will measure "minimum competency,'' she said, which is the least that visitors should expect.

"The tour guides are selling themselves as experts,'' Bruhl said.

The issue was brought to the city's attention by Ron Avery, a longtime tour guide and former newspaper reporter who said he's compiled a list of dozens of fallacies he's heard from local guides. He testified Friday that there is "a general incompetence among tour guides in the city.''

Several other cities test and license tour guides, including Washington, New Orleans and Savannah, Ga. But none of those regulations has been challenged on First Amendment grounds, said McNamara, who works for the Arlington, Va.-based Institute for Justice.

McNamara suggested a voluntary certification program would not infringe free speech rights, and tourists could decide if they prefer certified guides.

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