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In free speech case, court rules for Washington tour guides who challenged license regulations

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WASHINGTON — A federal appeals court ruled Friday in favor of tour guides in the nation's capital who challenged licensing regulations that require guides to pay the government $200 and to pass a 100-question multiple-choice exam.

The licensing requirement ensures that prospective guides are who they say they are and have at least a minimal grasp of the city's history and geography, the city has said in defending the rule.

But in a 3-0 decision on a free speech issue, the U.S. Court of Appeals for the District of Columbia Circuit said the city failed to present any evidence the problems it sought to thwart actually exist.

And the court said that even if the harms are real, there is no evidence the city's exam requirement is an appropriate antidote.

"The city has provided no convincing explanation as to why a more finely tailored regulatory scheme would not work," appeals Judge Janice Rogers Brown wrote for the court.

The appeals judges noted that the multiple-choice questions fall into 14 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.

PHOTO: FILE - This June 21, 2014 shows sunrise over, from left, the Capitol Dome, Washington Monument and Lincoln Memorial in Washington. A federal appeals court has ruled in favor of tour guides in the nation’s capital who challenged city rules that require guides to pay the government $200 and to pass a 100-question multiple-choice exam. In Washington, operating as a paid, unlicensed tour guide is punishable by up to 90 days in jail and a $300 fine. (AP Photo/J. David Ake, File)
FILE - This June 21, 2014 shows sunrise over, from left, the Capitol Dome, Washington Monument and Lincoln Memorial in Washington. A federal appeals court has ruled in favor of tour guides in the nation’s capital who challenged city rules that require guides to pay the government $200 and to pass a 100-question multiple-choice exam. In Washington, operating as a paid, unlicensed tour guide is punishable by up to 90 days in jail and a $300 fine. (AP Photo/J. David Ake, File)

Operating as a paid tour guide in Washington without a license is punishable by up to 90 days in jail and a $300 fine.

Lawyers for tour guides Tonia Edwards and Bill Main argued that the licensing requirement was an unconstitutional restriction on their First Amendment rights. Edwards and Main provide tours to small groups of people renting Segway scooters.

A federal judge had ruled in favor of the city, saying the requirement placed only incidental burdens on speech that were no greater than necessary to further the District of Columbia's substantial interest in promoting the tourism industry.

The appeals court reversed, saying it found the record devoid of evidence supporting the burdens the challenged regulations impose.

The appeals court panel said the city "rehearses a plethora of harms it claims to forestall with the exam requirement" — including unscrupulous businesses, visitors vulnerable to unethical or uninformed guides, tourists treated unfairly or unsafely, tourists who are swindled or harassed, tour guides abandoning tourists in some far-flung spot or charging them additional amounts to take them back.

The panel said that despite the city's "seemingly talismanic reliance on these asserted problems," the record contains no evidence that ill-informed guides are actually a problem for the city's tourism industry.

"The First Amendment protects everyone who talks for a living, whether you're a journalist, a professor or a tour guide," Robert McNamara, an attorney in the case, said after Friday's ruling.

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