UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) TONIA EDWARDS, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 10-1557 ( PL F) ) DI STRI CT OF COLUMBI A, )

) Def endant. ) ____________________________________)

OPI NI ON Since 1932, the District of Columbia has re quired that those who c onduct tours for pr ofit in the District must obtain a license be fore doing so. In J uly 2010, the District promulg ated r egulations defining the tour g uide profe ssion and specify ing f ive re quirements for obtaining a

tour g uide license . This action pre sents the question whethe r the District’s tour guide licensing scheme is in viol ation of the F irst Amendment to the United States Constitut ion.

Plaintiffs are ow ners a

nd operators of a tour guide company in the District of Columbi a. On Septembe r 16, 2010, they filed a c omplaint in thi s Court, requestingdecla ratory and injunctive re lief fr om the District’s tour g uide licensingscheme and ther eaf ter filed a motion for a preliminary

injunction. Defe ndant opposed this motion and simul taneously filed a motion to dismi ss. The Court hea rd ora l argument on both motions on Dec ember 22, 2010, and took them under a dvisement. Upon ca ref ul consideration of the parties’ paper s, the oral a rg uments 1 Duringoral a

rg ument, the par

ties noted the possibilit y

of introducing 1 documentation into the re cord, unde r sea l, or filing a set of stipulated fa cts and then moving for summary judgme nt. See Dec ember 22, 2010 Motions HearingTransc ript (“Tr .”) at 46-50. The Court theref

ore w ill deny

defe ndant’s motion to dism iss without prejudice and w ill direct the parties to file a

joint st atement r eg ardinghow they wish to procee d in this case.prese nted by counsel, the r eleva

nt leg al authorities, and the entire r ecor d in this case, the Court will deny plaintiffs’ motion for a pr eliminary injunction and will deny

without prejudice defe ndant’s motion to dism iss. 2

I . BA CKGROUND A. Segs in the City Plaintiffs Tonia Edwar ds and B ill Main “ear n their living a s tour guides.” Compl. ¶ 4. They own and ope rate “‘Seg s in the City ,’ a Segway -re ntal and tour business that oper ates in Washington, D.C., as we ll as in Annapolis and B altimore.” Mot. for PIat 1. Plaintiffs’ business

3 model is the same in all three cities: they “both re nt Segw ay s to indivi duals for pr ivate use a nd provide tours to small g roups of pe ople.” I d. Duringthe summer months, the busiest time of the y ear for Seg s in the City , “about ha lf of the tours a re c onducted dire ctly

by either [Bill] Main or [Tonia] Edwar ds — the rest a re c onducted by

independe nt contrac tors [p] laintiffs hire f or the summer.” I d. Most of plaintiffs’ par t-time g uides “a

re usua lly colleg e students workingon their summer bre ak.” Ma in Decl. ¶ 9. Plaintiffs “usually

hire a round 15 par

t-time g uides a summer”

The pa pers r eviewe d in connec tion with the pending motions include the 2 following : plaintiffs’ complaint (“ Compl.”); plaintiffs’ motion in support of their motion for a preliminary

injunction (“Mot. for PI ”); the de clar ation of Tonia Edw ards a nd the dec lara

tion of Bill Main in support of plaintiffs’ motion for a preliminary

injunction (“Edwa

rds Dec l.”) (“ Main Dec l.”); def

endant’ s motion t o dismiss and opposition to plainti ffs’ motion for a preliminary injunction (“PIOpp & MTD”) ; the decla ration of Ha

rold P. Petti g rew , J r. (“ Pettigre w Dec l.”); plaintiffs’ combined r eply in support of their motion for a pr eliminary injunction and opposition to defe ndant’s motion to dism iss (“PIReply & MTD Opp.”) ; and def

endant’ s reply

(“MTD Reply ”). The Court also has re viewed the transcr ipt of the Dec ember 22, 2010 motions hearing

. Seg way s are define d as “se lf-bala ncing persona l transport vehic le[s] .” Compl. 3 ¶ 27. 2and conside r it a “shor t-term job”: plaintiffs “ either ne ver or almost never ha d any

of [their part-time guides] return for a second summer .” I d. Plaintiffs describe their tours as f ollows: A Seg s in the City

tour has two basic phases. F irst, the tour leade r spends time training the g roup (whic h never has more tha

n 10 people) in how to ride a Seg way , including instruc tion in how to ride saf ely and how to comply

with releva

nt safety regulations like speed limits. Then, the g roup puts their new found knowledg e to use, riding the Seg way s with their g uide alongone of se vera l established tour route s. Edwar ds Dec l. ¶¶ 14-17; Main De cl. ¶¶ 14- 17. Eac h tour lasts betwee n one and thr ee hour s, and Seg s in the City operates up to five tours a da y , seven da

y s a we ek. Edwar ds Dec l. ¶¶ 7, 18; Main De cl. ¶¶ 7, 18. A s the g roup members r ide, the tour lea der c ommunicates with them via a r adio ear piece (provided by

Seg s in the City ), occ asionally pointing out or desc ribing points of interest alongthe route. Edw ards De cl. ¶¶ 17- 19; Main Dec l. ¶¶ 17-19. Mot. for PIat 2.

By statute in eff

ect since 1932, the District of Columbia has re quired that those who conduc t tours for prof it in the District must obtain a license befor e doing so. See D.C. C O D E § 47-2836(a ). In 2010, the District of Columbia Depa rtment of Consumer a

nd Reg ulatory Affa irs (“D CRA”) promulg ated ne w re g ulations that specifica lly define tour g uides and that specify five re quirements for

a tour guide license . See 57 D.C. R E G . 6116 (Jul y 16, 2010); D.C. M U N . R E G S . T I T . 19, § 1200 et seq. Any individual who violates either the statute or the regulations “shall upon conviction be f ined not more than $300 or imprisoned for not more than 90 day s.” D.C. C O D E § 47-2846; see D.C. M U N . R E G S . T I T . 19, § 1209.2. The re g ulations 4

The statute a

nd regulations are he reina fter r efe rre d to toge ther a s the “tour g uide 4 licensing scheme ,” unless other wise noted. 3further

provide for

the possibilit y

of both a fine and imprisonment. D.C. M U N . R E G S . T I T . 19, § 1209.2. Plaintiffs have be en lea ding tour s in the District of Columbia for more tha n six y ear s and continue to do so. See Seg s in the City , http:// www.se g sinthecity .com/FAQ .htm (last visited Feb. 24, 2011) ; see PIOpp. & MTD at 15. Plaintiffs have never obtained a tour

g uide license, how ever , and they “re fuse to obtain one,” beca use they view the r equire ment as burdensome a

nd in violation of their First Amendme nt rig hts. Main Decl. ¶ 21; see id. ¶¶

22-25; Edwar ds Dec l. ¶¶ 22-25.

B. Tour Guide Licensing in the District of Columbia 1. The District of Columbia Code Since nea rly the establishment of the D istrict of Columbia, Congre ss has deleg ated to the District the police power to regulate businesses a

nd occupations. S ee, e .g ., District of Columbia v. J ohn R. Thompson Co., 346 U.S . 100, 113 n.9 (1953). The curr ent g ener al business licensing scheme derive s from an A ct passed by Congr ess in 1902, making “it illega l for any

person to eng ag e in or c arr y on any business, trade, pr ofession, or c alling in this District for whic h a license tax i s imposed without first obtaining a lice nse . . . .” Richa rds v. Davison, 45 App. D.C. 395, 399, 1916 WL21670, at *3 (D.C. Cir. 1916). In that Act, Cong ress imposed license- reg istration and fe e re quirements on var ious businesses and prof essions, including a

potheca ries, auc tioneers, c attle dea lers, propr ietors of passeng er ve hicles for

hire, re al estate broker s and ag ents, hotels, restaur ants, theate rs, and owne rs or lesse es of g rounds used for horse r acing , tournaments, athletic spor ts, baseball, footba ll, polo, g olf, and kindre d g ames, or where feats of horsemanship a re perf ormed. PI Opp. & MTD at 6 (inter nal quotations and citation omitted).

4Thirty y ear s later, in 1932, Cong ress spec ifically authorized the re g ulation of for- profit tour g uides in the District of Columbia, providing:

No per son shall, for hire , g uide or e scort any person throug h or about the District of Columbia, or a ny part ther eof, unle ss he shall have f irst secure d a license to do so. The fe e for eac h such license shall be $10 per

annum. No license shall be issued her eunder without the approva l of the major a nd superintende nt of police. The Commissioners of the District of Columbia are here by authorized and e mpowere d to make re asonable regulations for the examination of all applicants for suc h licenses a nd for the g overnme nt and conduc t of persons lice nsed her eunder , including the power to require said persons to we ar a badg e while e ng ag ed in their ca lling. A C T O F J U L Y 1, 1932, 47 S T A T . 550, 558 ¶ 38; see PIOpp. & MTD at 6.

I n 1994, the Council of the District of Columbia cr eate d the B usiness Reg ulatory Reform Commission for the purpose of identifying “ ‘statutes and r egulations in the District of Columbi a that ar e obsolete, inc onsistent or duplicative, espe cially as they rela te to building and land uses, businesses, oc cupations and pr ofessions.’” PIOpp & MTD at 9 (quotingC O U N C I L O F

T H E D I S T R I C T O F C O L U M B I A , C O M M I T T E E O N C O N S U M E R & R E G U L A T O R Y A F F A I R S , R E P O R T O N B I L L 12-458 at 3, De c. 19, 1997). D efe ndant explains that the ulti mate re sult of the Commi ssion’s work wa s a “stre amlined . . . business-licensing proce ss” that eliminated “a number of boa

rds and c ommissi ons and outdated lice nse categ ories.” I d. at 10 (c iting D.C. C O D E § 47-2801 et seq.) . The tour guide licensing statute, howeve r, re mained esse ntially unchang ed from the 1932 statute, a

nd is stil l in effe ct to this day , now providing : No per son shall, for hire , g uide or e scort any person throug h or about the District of Columbia, or a ny part ther eof, unle ss he shall have f irst secure d a license to do so. The fe e for eac h such license shall be $28 per

annum. No license shall be issued her eunder without the approva l of the Chief of Police. T he Council of the

5District of Columbia is authorized and empower ed to make rea sonable re gulations for the e x amination of all applica nts for such license s and for

the g overnme nt and conduc t of persons licensed he reunde r, including the power to require said persons to wea r a ba dg e while e ng ag ed in their c alling. D.C. C O D E § 47-2836(a ). Any violation of this st atute shall subject a n individual, upon conviction, to a fine of not more than $300 or imprisonment for not more than 90 da y s. I d. § 47-2846. 5 2. The District of Columbia Municipal Reg ulations The tour guide licensingstatute empowe rs the Council of the District of Columbi a to make “r easona

ble re g ulations for the e x amination of all applica nts for such [tour g uide] licenses a nd for the g overnme nt and conduc t of persons lice nsed her eunder . . . .” D.C. C O D E § 47-2836(a ). Until rec ently , the re g ulations promulgated pursuant to this statutory authority had require d, among other thing s,

that a guide be a

citizen of the United States, be “ of sound phy sique, with g ood ey esig ht . . . and hea ring in both ears; not subject to epilepsy , vertig o, or hea rt trouble; fre e fr om any contag ious or infec tious disease; and not a dr unkard or addicted to the use of ha

bit-formingdrug s.”

There are only

two repor

ted dec isions that dis cuss the District’s tour guide 5 licensing statute. Neither involved the Fir st Amendment. I n District of Columbia v. L andmar k Servs., Inc., 416 F . Supp. 559 (D.D.C. 1976), the District brought an ac tion ag ainst a compa ny providing tour g uide servic es, see king to e njoin the company from oper ating until itcomplied with the District’s tour g uide statute, amongothers. I d. at 559-60. The company “admit[ted] that ordinarily it would have to comply ,” id. at 560, but ar g ued that it was e x empted by fede ral law beca use it was providingtour g uide servic es fr om Robert F. Ke nnedy Memorial Stadium to the Mall, pursuant to its contrac t with the Secre tary of the Interior. I d. at 560-61. Judge Sirica ag ree d with the company , holding that it was e x empted fr om compliance w ith the tour g uide statute. I d. at 564. The c ourt of appe als aff irmed the district cour

t’s judgme nt with modifications. See United States v. District of Columbia, 571 F .2d 651, 653, 660 (D.C. Cir. 1977). 6PI Opp. & MTD at 10 (quotingD.C. P O L I C E R E G ., A R T . I I , S E C . 5 (1970); C O M M I S S I O N E R S ’

O R D E R N O . 59-1043 (Jun. 17, 1959)).

I n Dec ember

2008, howeve r, the DCRA propose d to revise those r egulations. See 55 D.C. R E G . 12284 (De c. 5, 2008). The DCRA relea sed a notice of propose d rulemaking that provided the oppor

tunity for the public at larg e to comment. See id. Af ter re ceivingcomments, the DCRA further

revised the se propose d regulations, see 57 D.C. R E G . 4434 (May 21, 2010), and then r evised the pr oposed re g ulations a final time bef ore f ormally promulg ating them in their officia l, curre nt form on J uly 16, 2010. See 57 D.C. R E G . 6116 (Jul y 16, 2010). As promulg ated, these regulations first specifica lly define a “tour

g uide,” a s follows: Whenever used in this chapter , the term “ tour g uide” or “sig htseeingtour g uide” sha ll mean any person [1] who enga g es in the business of guiding or direc ting pe ople to any

place or point of interest in the District, or [2] who, in connection with any sightsee ing tr ip or tour, desc ribes, explains, or lecture s conce rning any place or point of intere st in the District to any person. D.C. M U N . R E G S . T I T . 19, § 1200.1. These r egulations then define a “sig htseeingtour company” as “a business that employ s a sig htseeingtour g uide.” I d. § 1200.2.

The followingsection of the r egulations, Section 1201, imposes the require ment that for- profit tour g uides obtain a lice nse. I t provides:

No per son shall offer

to act as a

sightsee ing tour

g uide on the roads, sidew alks, public space s, or wate rwa y s of the District of Columbi a unless the pe rson holds a valid sig htseeingtour g uide license issued by

the Depa rtment of Consumer a

nd Reg ulatory Affa irs (De partment). . . . No business or entity

shall offe r, for

a fe e, to conduc t walking tours or tours whe re c ustomers operate self- balanc ing pe rsonal tra nsport

7vehicles, mope ds, or bicy cles unless the business or entity is licensed by

the Depa rtment as a sig htseeingtour company

. D.C. M U N . R E G S . T I T . 19, §§ 1201.1, 1201.3.

The re g ulations also include what the pa rties re fer to as a “ holding- out” provision, which provide s that “[n] o person, other than a lice nsed sig htseeingtour company or sig htseeing tour g uide may

use the wor ds ‘sig htseeing ,’ ‘tours,’ ‘guide,’ or a ny combination of these w ords, to adver tise the ava ilability

of sig htseeingtour servic es.” D .C. M U N . R E G S . T I T . 19, § 1201.5. This latter prohibition does not apply “to the use of

these wor ds as par

t of the identifying letteringon vehicles c oming into the District or to a tour that is not conducted f or prof it or compensation.” I d.

Under the re g ulations, in order to obtain the re quired tour guide license , an applicant must satisfy

five re quirements. See D .C. M U N . R E G S . T I T . 19, § 1203. An applica nt must (1) be at least eig hteen y ear s old, id. § 1203.1(a); (2) be prof icient in Eng lish, id. § 1203.1(b); (3) not have be en convic ted of c erta in specified f elonies, id. § 1203.1(c) ; (4) make a sworn stateme nt that all statements contained in his or he r application are true and pay all require d licensing fee s, id. § 1203.2; and (5) pa ss an examination “cover ing the applicant’ s knowledg e of building s and points of historical and g ener al intere st in the District.” I d. § 1203.3.

Wit h respe ct to the fifth re quirement, the e x amination, the re g ulations do not provide a ny further descr iption or ex planation and the Court ha s not been provide d a copy of the examination for its review. The DCRA has, howeve r, provided a “Study Refer ence ” that explains t hat “[t] here are differ ent ver sions of the examination, each c onsisting of 100 multiple choice questions.” D I S T R I C T O F C O L U M B I A S I G H T S E E I N G T O U R G U I D E P R O F E S S I O N A L L I C E N S I N G

8E X A M I N A T I O N S T U D Y R E F E R E N C E , http:// www.a sisvcs.com/publications/publis t.cg i? st=09& ind=

TG& CPC at=TG 09STATEREG (last visited Fe b. 24, 2011). Applica nts must obt ain a minimum

score of 70 to pass. I d. Acc ording to the DCRA,

questions may

come f rom any of the followingcate g ories: Arc hitectura l; Dates; Gover nment; Historical Events; L andmar k Building s; L ocations; Monuments, Memorials; Museums and Art Galler ies; Parks, Gar dens and Z oo Aquar iums; P residents; Sculptures and Statutes; Universities; Pictures; Reg ulations. I d. The e x amination fee is $200.00. I d.

Simi lar to the pe nalty

provision in D.C. Code Section 47-2846, any individual who violates any

provision of the tour guide re g ulations “shall, upon conviction, be f ined not more than thre e hundre d dollars ($300) or imprisoned for not more than ninety (90) da y s, or both.” D.C. M U N . R E G S . T I T . 19, § 1209.2. 6

At least four

other c ities have promulg ated similar tour guide licensing 6 regulations: P hiladelphia, Pennsylvania; New York, Ne w York; Sava

nnah, Ge org ia; and Charleston, South Carolina. See P H I L A D E L P H I A C O D E § 9-214 et seq.; N E W Y O R K C I T Y A D M I N I S T R A T I V E C O D E § 20-242 et seq.; C I T Y O F S A V A N N A H , G E O R G I A , O R D . 2-9-78, S E C . 1, § 6-1501 et seq.; C I T Y O F C H A R L E S T O N , S O U T H C A R O L I N A , O R D . N O . 1998-174, A R T I C L E I I I , § 29-58. The N ational Park Servic e has a simil ar r egulation, promulgated in 1959, that require s the licensingof tour guides in National Military Parks. See 36 C.F .R. § 25.2. As far as the Court is awa

re, Philadelphia’ s tour g uide re g ulations are the only other re g ulations to have bee n challeng ed on F irst Amendment g rounds. See Ta it v. Ci ty of Philadelphia, 639 F. Supp. 2d 582 (E.D. Pa. 2009) . The district cour t in Tait, however , did not rea ch the mer its of the First Amendme nt claim. See id. at 585. Instead, be cause the city indicated that it would not be able to enforc e the r egulations due to economic de cline and sc arc ity of re source s, the district court held that the c ity ’s inability to enforc e the r egulations “vitiates ripene ss” and dismissed the ca se for lack of subject matter jur isdiction. I d. The Third Circ uit aff irmed this decision, without comment on the merits of the F irst Amendment claim. See T ait v. City of Philadelphia, No. 09-3599, 2011 WL 359700, at *1, *4 (3d Cir. F eb. 7, 2011). 9I I . L EGAL STANDARD A pre liminary

injunction is “‘an extraordinar y reme dy that should be g rante d only when the pa

rty seekingthe re lief, by

a cle ar showing , car

ries the bur den of pe rsuasion.’” Chaplaincy

of F ull Gospel Churches v. Eng land, 454 F.3d 290, 297 ( D.C. Cir. 2006) (quoting Cobell v. Norton, 391 F.3d 251, 258 ( D.C. Cir. 2004)). To wa rra nt preliminary

injunctive relief

, a moving party

must show: (1) that there is a substantial likelihood that it will succee d on the merits of its claims; (2) that it will suffer irr epar able ha rm in the absenc e of a

n injunction; (3) that a n injunction would not subst antially harm the de fenda

nt or other inter ested pa

rties (bala nce of harms); a nd (4) that the public inter est would be fur there d, or at lea st not adverse ly aff ecte d, by the injunction. See id.; Davis v. Pension Be nefit Gua r. Corp., 571 F .3d 1288, 1291 (D.C. Cir. 2009); Serono L abs., Inc. v. Shalala, 158 F .3d 1313, 1317-18 (D.C. Cir. 1998).

These f our fa ctors must be viewe d as a c ontinuum, with m ore of one fa ctor compensating f

or less of a

nother. Da

vis v. Pension Bene fit Guar. Corp., 571 F .3d at 1291-92. “I f the a rg uments for one fac tor are particula rly strong , an injunction may issue even if

the arguments in other ar eas a re r ather weak.” City

Fe d Fin. Corp. v. Of

fice of Thrift Super

vision, 58 F.3d 738, 747 ( D.C. Cir. 1995). An injunction may be justified “whe re the re is a pa rticularly strong likelihood of succe ss on the merits even if there is a relatively

slight showing of irrepa rable injury .” I d. Conversely , when the othe r three fac tors strong ly favor interim relief

, a court may g rant injunctive re lief whe n the moving pa rty has mere ly

made out a “ substantial” ca se on the merits. The ne cessa ry level or de g ree of likelihood of succ ess that must be shown will vary acc ording to the Court’s assessment of the other fa ctors. Washing ton Metro. Are a Tra nsit Comm’n v. Holiday

Tours, Inc., 559 F .2d 841, 843-45 (D.C. Cir. 1977). An injunction may be

10issued “with either a hig h probability

of succ ess and some injury , or viceversa .” Cuomo v. U.S. Nuclea r Regulatory

Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985) (e mphasis in origina l). Despite this flexibi lity , howeve r, “a movant must demonstrate ‘at least some injury ’ for

a pre liminary

injunction to is sue,” a

nd “[a] . . . failure to show anyirrepa rable harm” constitutes gr ounds for de nying the motion for a pre liminary injunction, “even if

the other thre e fac tors enter ing the calc ulus merit such relief .” Chaplainc y

of F ull Gospel Churches v. Eng land, 454 F.3d at 297 (quoting City Fe d Fin. Corp. v. Of

fice of Thrift Super

vision, 58 F.3d at 747, and citing Sea Containers L td. v. Stena AB , 890 F.2d 1205, 1210- 11 (D.C. Cir. 1989)) ( emphasis added)

. I I I . DI SCUS SI ON

Plaintiffs assert both a f

acia l and an a s-applied F irst Amendment cha lleng e to D.C. Code Section 47-2836 and to the r egulations rece ntly promulg ated unde r it. See Compl. at 10. Althoug h plaintiffs contend that eac h preliminary injunction factor w eig hs strong ly in their fa vor, Mot. for PI

at 6, their motion is essentially depende nt on a favorable findingon the first fac tor — the likelihood of succ ess on the mer its of their First Ame ndment claim. Plaintiffs contend that they

are substantially

likely to succe ed on the mer its because the District’s tour g uide licensing scheme is a content ba sed prior r estraint on spee ch that ca nnot survive strict scrutiny revie w. I d. at 7. Plaintiffs also maintain that they will suffer ir

repa rable harm in the absenc e of a

n injunction because of their a sserted c lear constitutional inj ury . I d. at 13-14. Def endant r esponds that the tour guide licensingscheme implicates only

commerc ial speec h, subject to a less sea rchingstandard of

revie w than pure speec h. Opp. &

11MTD at 16. In the alter native, def

endant c ontends that eve n if the Court wer e to re ject its

commerc ial speec h argument, the licensingscheme is content neutra l and survives interme diate scrutiny revie w. I d. at 20, 23. 7

A. The Merits

1. More Tha

n Commercial Speec h Def endant a rg ues that bec ause the licensing scheme is trigg ere d only when tour g uides are “

for hire , . . . . the cha lleng ed re strictions apply only to commerc ial speec h, which is

acc orded le sser prote ction under the First Amendme nt than other spee ch.” PI Opp. & MTD at 5

Def endant’ s paper s sugg ested that plaintiffs may lack standing . See Opp. & MTD 7 at 40. Duringoral a

rg ument, howeve r, def

endant’ s counsel conc eded that defe ndant does not challeng e plaintiffs’ sta

nding in this ca se. Tr. at 34:16-21. The pa rties’ pa pers a lso raise two possible threshold que stions. First, defe ndant contends that plaintiffs’ challeng e ca n only be a f acia l one, g iven that plaintiffs have “neve r applied for

a license , and ther e’s no c redible thre at of prose cution.” Tr. a t 31:21-22; see also PI Opp. & MTD at 15. Ac cording ly , defe ndant contends that plaintiffs must satisfy a hig h burden to preva il in thi s case . PIOpp. & MTD at 15. Plaintiffs did not respond to this arg ument in their paper s. During oral a

rg ument, plaintiffs’ counse l stated that plaintiffs did in fac t plead both ty pes of cha lleng es in their complaint but conc eded that plaintiffs have not a pplied for a

license. See Tr. at 18:2-19:13. Plaintiffs’ c ounsel then asse rted that Citiz ens United v. F eder al Elec tion Commi ssion, 130 S. C t. 876, 893 (2010), now make s clea r that the diff

ere nce be tween f

acia l and as-a pplied challeng es “is funda mentally a question of r emedy

. . . .” Tr. at 18:7. Second, the pa

rties’ pa pers r aise the que stion whether the D istrict’s tour g uide licensing require ments could be c onsidered g ener al occ upational licensingrequire ments subject only to rational basis re view and outside of First Amendme nt scrutiny . See Schwa re v. B d. of Ba r Exam’rs, 353 U.S. 232, 239 (1957); Tauc her v. B orn, 53 F . Supp. 2d 464, 476 (D.D.C. 1999). The Court nee d not resolve e ither question. Reg ardle ss of how plaintiffs char acte rize the nature of their c halleng e and a ssuming that the F irst Amendment does in fa ct apply , the Court conclude s that the tour g uide licensingscheme is content neutra l and survives intermediate scrutiny

revie w. 12(interna l quotations and citation omitt ed) ( emphasis in orig inal). Plaintiffs disag ree with

defe ndant’s “sw eepingproposition that ‘commerc ial speec h’ mea ns ‘spee ch someone wouldn’t eng ag e in for f

ree .’” PI Reply & MTD Opp at 7. Plaintiffs argue that the ty pe of spe ech at issue in this case is well outside of the c ommercia l speec h cate g ory . I d. at 6-7.

The Court ag ree s with plaintiffs. As this C ourt has re cog nized: “‘[T] he degree of First Amendme nt protection is not dimini shed mere ly beca use . . . spee ch is sold rather than g iven awa

y .’” Ente n v. District of Columbia, 675 F. Supp. 2d 42, 50 (D.D.C. 2009) ( quoting City of L akew ood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988)) . “[E] x pressive materia ls do not lose their First Amendme nt protection mere ly beca use they are offe red f

or sale. . . . Indeed, the [S upreme ] C ourt long ag o reminded us ‘ that the pamphlets of Thoma s Paine

wer e not distributed fre e of c harg e.’” I SKCON of Potomac, Inc. v. Ke nnedy , 61 F.3d 949, 953-54 (D.C. Cir. 1995) ( quoting Murdoc k v. Pennsy lvania, 319 U.S. 105, 111 (1943))

.

Def endant f ails to apprec iate the distinction betwee n speec h-for -prof it and

commerc ial speec h. Commercial spee ch is “spee ch which doe s no more than pr opose a

commerc ial transac tion,” Bolg er v. Y oung s DrugProds. Corp., 463 U.S. 60, 66 (1983) (interna l quotations and citation omitted), but speec h “ca rried in a form that is sold for prof it,” Virg inia State Bd. of

Pharmac y

v. Virg inia Citi zens Consum er Council, Inc., 425 U.S. 748, 761 (1976) (interna l quotations and citation omitt ed), is not commer cial spee ch. As a n example, “[a]n astrolog ical pre diction, without more, is not commercial spee ch bec ause the speec h is the substance of

the transa ction. Commercial spee ch — like an a dvertisement — is incidenta l to an economic tr ansac tion; it proposes or e ncoura g es a tra nsaction.” Rushman v. City of Milwaukee ,

13959 F. Supp. 1040, 1043 (E.D. Wis. 1997). Thus, to qualify as commer cial spee ch subjec t to lesser pr otection under

the Fir st Amendment, the spee ch must . . . be a mea

ns to another e nd, not an end in itself. In other words, commer cial spee ch, stateme nts encoura g ing a future economic tr ansac tion, is di ffe rent than spe ech- for- profit, the sale of ideas a nd words. . . . Tutoring , providing leg al advice , or g iving medical a dvice is spee ch-f or-pr ofit, not commercia l speec h. . . . Telling fortunes or

g iving a dvice ba sed on astrology (without more) is spee ch-f

or-pr ofit, not commercia l speec h. I d. (interna l citations omit ted); see also Trimble v. City of Ne w I beria , 73 F. Supp. 2d 659, 666 (W.D. L a. 1999) ( “Just beca use someone ma

y pay a fe e for the plaintiffs’ se rvice s, the telling of fortunes a nd the g iving of

spiritual advice doe s not propose a c ommercia l transac tion.”). I ndeed, the Eig hth Circuit, in the context of a F irst Amendment cha lleng e to a law prohibiting for -prof

it fortune-te lling, re

jected the very

same a rg ument that defe ndant makes he re: The spee ch itself, for

tunetelling, is not commer cial simply beca use someone pa

y s for it. The spe ech c overe d by the ordinanc e, for

the most part, does not simply propose a

commerc ial transac tion. Rather, it is the transa ction. The spee ch itself is what the c lient is paying f or. . . . Ther e is a distinct differ ence betwee n the offe r to tell a fortune (“I ’ll tell y our for tune for twe nty

dollars.”) , which is commerc ial speec h, and the a ctual telling of the for tune (“ Isee y our future . . . .”), w hich is not. Arg ello v. City

of L incoln, 143 F.3d 1152, 1153 ( 8th Cir. 1998) (emphasis in orig inal) (inter nal quotations and citation omitted). The Court there fore reje cts defe ndant’s conte ntion that only

commerc ial speec h is impl icated in this ca se. 8

Plaintiffs do conce de that one — but only one — re g ulation is directed pur ely at 8 commerc ial speec h: the holding- out provision. See Mot. for PIat 12-13. As discusse d, Section 1201.5 of the re g ulations prohibits any one other than a lice nsed sig htseeingcompany or tour g uide from a dvertisingits services usingthe words “ ‘sig htseeing ,’ ‘tours,’ ‘guide,’ or a ny combination of these w ords, to adver tise the ava ilability

of sig htseeingtour servic es.” D .C. M U N . R E G S . T I T . 19, § 1201.5. Plaintiffs’ argument here is that this commercial spee ch 142. Content Neutral The ne x t question, then, is whether the tour g uide licensingscheme is content neutra l or content ba sed. This deter mination “is critical, not bec ause it mig ht end the inquiry , but beca use it will direct its path.” B oardle y v. U.S. Dep’t of the I nterior, 615 F .3d 508, 516 (D.C. Cir. 2010). “‘Re g ulations which permit the Gove rnment to discriminate on the ba sis of the content of the messag e ca nnot be tolerated under

the Fir st Amendment.’” F orsy th County , Ga. v. Nationalist Movement, 505 U.S. 123, 135 (1992) ( quoting Reg an v. Time, I nc., 468 U.S. 641, 648-49 (1984) ). Not surprising ly , there fore , defe ndant ar g ues that the lice nsing sc heme is content neutr al, while plaintiffs c ontend that it is content based. The Court ag ree s with defenda nt that it is content neutral and the ref ore is subjec t to intermediate — not strict — scr utiny . As this Court has explained:

“The principal inquiry

in determining content neutr ality , in speec h case s g ener ally

and in time, place , or manne r ca ses in particula r, is whether the g overnme nt has adopted a regulation of speec h beca use of disag ree ment with the messag e it convey s.” Ward v. Rock Ag ainst Racism, 491 U.S. 781, 791 (1989). “G overnme nt regulation of expressive ac tivity is content neutra l so long a s it is ‘justified without refe renc e to the conte nt of the re g ulated speec h.’” I d. (interna l citations omit ted). A.N.S.W.E.R. C oal. v. Kempthorne , 537 F. Supp. 2d 183, 195 (D.D .C. 2008).

restric tion cannot stand sepa rate ly from the unde rlying lice nsing r equire ments and that these terms ar e truthful and nonmislea ding. Mot. for PIat 13. Given the Court’ s conclusion that the underlying lice nsing r equire ments are valid, plaintiffs’ ar g ument on this point become s moot. Cf. Nat’l Ass’n f

or the Adva

nceme nt of Psy choana ly sis v. California Bd. of Psy cholog y , 228 F.3d 1043, 1056 n.10 ( 9th Cir. 2000) (“Plaintiffs conc ede that, if the licensing scheme is otherwise va lid, they

have no via

ble commer cial spee ch cla im for the rig ht to use profe ssional titles, such as ‘psy choana ly st’ and ‘a naly tical psy cholog ist.’”). 15a. The District of C olumbia Statute The pa rties’ pa pers g ener ally

trea t the District’s statute and the reg ulations promulg ated unde r it as one a nd the same. See , e.g ., Compl. at 10. During or al ar g ument, howeve r, plaintiffs’ c ounsel came close to c onceding that, with respec t to the statute, there is no basis, independe nt from the re g ulations, for conc luding that it is content base d. See Tr. at 16:12-17:19

. This conce ssion would be appropr iate bec ause D .C. Code Section 47-2836 is “indisputably

content-ne utral on [its ] face.” Boa rdley v. U.S. Dep’t of the I nterior, 615 F .3d at 516. This statute, in effe ct and unc halleng ed since 1932, makes no re fer ence to speec h at all; its focus is only

on conduct, pr oviding that “ [n] o person sha ll, for hire, guide or escort any person through or about the D istrict of Columbia . . . unless he shall have f irst secure d a license to do so.” D .C. C O D E § 47-2836(a ) (e mphasis added) . Clearly , this statute requires a license r eg ardle ss of any

messag e a tour

g uide may

wish to convey . See B oardle y v. U.S. Dep’t of the Interior, 615 F .3d at 516; A.N.S.W.E.R. C oal. v. Kempthorne , 537 F. Supp. 2d at 195. And plaintiffs have provided no ba sis for the Court to conclude that Congr ess and then the Council of the District of Columbia wer e “motivated to a dopt [ this statute] by [t heir] ag ree ment with or hostilit y

toward a ny particula r messag e or spe aker .” B oardle y v. U.S. Dep’t of the I nterior, 615 F .3d at 516.

b. The District of Columbia Municipal Regulations Plaintiffs’ “primar

y First Amendme nt arg

ument is in the regulations.” Tr. at 16:23-24. I t beg ins with the proposition t hat plaintiffs “te ll stories for a living .” Mot. for PI

16at 5. Plaintiffs then asser t that “[w] hat [they ] do for a living is no diffe rent fr om what stand-up comedians do, is no diffe rent fr om what broa dcast journa lists do, i s no differ ent from what colleg e prof

essors do.” T r. at 27:12-15. Plaintiffs continue: the r ece ntly promulg ated regulations are e x pressly

direc ted at spee ch — and only speec h — beca

use they “apply only to people who ‘ descr ibe[] , explain[ ], or lecture[] concerningany place or point of intere st in the District to any

person’ on a tour . . . .” Mot. for PIat 8 (quoting D.C. M U N . R E G S . T I T . 19, § 1200.1); see a lso PI Reply & MTD at 3-4. B y

contra st, plaintiffs contend, “[p]eople who choose to talk a

bout other thing s may

do so fre ely .” Mot. for PI at 8. Thus, plaintiffs conc lude that the District’s tour guide “lice nsing r egulations are c ontent based be cause they impose burdens ( in the form of f

ees a nd a mandatory

examination) on people whose spe ech c ontains particula r conte nt: information about points of interest in Washington, D.C.” I d. The Court disag ree s. First, plaintiffs do more than speak for a living and the ir compar ison with stand-up comedians, br oadca st journalists, and colleg e prof essors is inapt. As plaintiffs state in their c omplaint, their profe ssion has two components: plaintiffs (1) “ direc t” tour g roups ar ound the District and ( 2) “de scribe” sights and building s. Compl. ¶ 31. I ndeed, a s plaintiffs furthe r spec ify , their tours have “two basic phases” : first, after providing some training on how to ride a

Seg way , “the g roup . . . rid[es] the Segways with their guide along one of

seve ral established tour rout es ”; sec ond, “[a]s t he g roup member s ride, the tour le ader communicates w ith them via a ra dio ear piece . . . , occasionallypointing out or de scribing points of interest alongthe route.” Mot. for PIat 2 (e mphasis added) (interna l quotations and citations omitt ed). Thus, pla intiffs’ profe ssion involves conduct and, by their terms, only

occa sional speec h. I d.; see Edwa rds Dec l. ¶ 17; Main Dec l. ¶ 17.

17The Court conc ludes that the plain re ading of the municipal re g ulations shows

that they are direc ted at plaintiffs’ c onduct — not their spee ch. The reg ulations unambiguously define a tour guide to mean a ny person [1] who eng ag es in the business of guiding or directing people to any place or point of intere st in the District, or [2] who, in connec tion wi th any sightseeing trip or tour , descr ibes, explains, or lectures c oncer ning a ny place or point of intere st in the District to any

person. D.C. M U N . R E G S . T I T . 19, § 1200.1 (empha sis added). The plain lang uag e of the regulations thus makes c lear

that speec h is not the trigg er f or the lice nsing r equire ment. Rather, like the statute, the re g ulations are tr igg ere d by conduct: the guiding or directing of a sightseeingtrip or tour. Any individual who guide s or direc ts people ar ound the District for pr ofit — reg ardle ss of whether that individual, like plaintiffs, “ occasionallypoint[ s] out or desc rib[es] points of interest along the route,” Edwar ds Dec l. ¶ 17 (empha sis added) — must first ac quire a license. There fore , like the statute, these r egulations require a license reg ardle ss of any messag e a tour g uide may

wish to convey . See B oardle y v. U.S. Dep’t of the I nterior, 615 F .3d at 516; A.N.S.W.E.R. C oal. v. Kempthorne , 537 F. Supp. 2d at 195. The se re g ulations are “ ‘unre lated to the content of

expression’” and ha

ve, at most, “‘a

n incidental ef

fec t on some speake rs or messag es but not others.’” Mahoney v. District of Columbia, 662 F. Supp. 2d 74, 87 (D.D.C. 2009) (quoting Ward v. Rock Ag ainst Racism, 491 U.S. at 791-92).

Plaintiffs argue in re ply

that “[t] he best wa

y to see that the guide-lice nsing sc heme takes a im at pure spee ch” is to examine (1) how the re g ulations treat vehic les that utiliz e only audio re cording s rather

than a pe rson who talks or c onvey s information, PIReply & MTD Opp.

18at 4-5, a

nd (2) the r equire ment that licensee s pass “a history test.” Tr. at 5:12-14. Turning first to the distinction between the ty pes of ve hicles that may

be utiliz ed by

a sig htseeingtour company , plaintiffs ref

er to Sec tion 1204.3 of the municipal regulations, which provides: A vehicle operated by a license d sightsee ing tour company shall have at least one (1) licensed sig htseeingtour guide on boar d the vehicle dur ing its sig htseeingtours in the District. This requireme nt shall not

apply to a vehic le that utili zes only audio recordings during the sightseeing tour ; provided, that a dr iver of such a sig htseeingtour vehicle who talks, lecture s, or otherw ise provides sig htseeinginformation to passeng ers while the vehicle is in motion m ust be licensed a s a sig htseeingg uide. D.C. M U N . R E G S . T I T . 19, § 1204.3 (empha sis added). A ccor ding to plaintiffs, this re g ulation means that “ [d] rivers of

tour buses, buses that drive around town w hile information play s on a prer ecor ded loop, while they ’re cer tainly escor ting pe ople ar ound town, do not need a [t our g uide] li cense ,” whe rea s drivers who “ talk, lecture , or otherw ise provide sig htseeing information to passeng ers” do need a license. Tr . at 4:5-11. Plaintiffs thus contend that this one section of the r egulations is “very strong evidenc e of . . . the most natural re ading of” this regulatory

scheme , which is that it only cover s and is direc ted at “pe ople who ar e conve ying sightsee ing inf

ormation to people on tours.” I d. at 12:15-18. The Court disagree s. The sec tion of the regulations on which plaintiffs re ly must be rea d both acc ording to its pl ain languag e and in the c ontext of the e ntire re g ulatory scheme . I t is a portion of Section 1204 of the re g ulations, entitled “Requireme nts for Sightsee ing T our Companies.” It thus applies to sightsee ing tour

companies w hich must, under the r egulations, first have obtaine d a license to operate as a

sightsee ing tour

company , see D .C. M U N . R E G S . T I T . 19, §§ 1201, 1202, as we ll as to

19any

tour guides it employ s, who also must obtain their own sepa rate licenses. See id. §§ 1201, 1203. The portion of Sec tion 1204 on which plaintiffs rely require s that a vehic le oper ated by a “license d sightsee ing tour company” must have a

licensed sig htseeingtour g uide on boar d its vehicle while conductinga sig htseeingtour in the District of Columbia. I d. § 1204.3. But it provides a na

rrow e x ception to this require ment: I f a lice nsed sig htseeingtour company chooses to operate a ve hicle that utiliz es only audio re cording s during a sig htseeingtour, it is not required to have a licensed sig htseeingtour g uide on boar d. I d. I n such ca se, the sig htseeingtour company is permitted to hire a dr iver only — who may

insert an a

udio rec ording into a rec order as he be g ins the drive — rather than hiringboth a driver and a se parate tour g uide. This exception rec og nizes that the business of driving a bus is differe nt from the business of guiding or direc ting tours. B ut if a bus driver wea rs two hats — both driving the tour vehic le and a lso “provid[ing] sightsee ing inf ormation to passeng ers” while driving — the re g ulations require that he or she must be licensed a s a sig htseeingtour g uide. I d. Why ? Be cause then the drive r is eng ag ing in the c onduct of “ g uiding or direc ting pe ople” to plac es of inter est in the District, id. § 1200.1, and, in conne ction with the activities of “guiding or direc ting,” id., the driver is explaining points of interest alongthe way . I d. § 1204.3. In other wor ds, he or she then is both a bus driver a

nd a tour guide, and — like e veryone else who eng ag es in the conduc t of g uiding or direc ting — the r egulations require that such per son be license d.

The sec tion of the regulations on which plaintiffs re ly does not turn on whethe r one per son speaks a

nd the other doe s not but, rather, on the distinction between those who a re eng ag ed in the conduc t of “guiding or direc ting” people to plac es of inter est and those who eng ag e in the ver

y differ ent conduc t of driving a bus. B y focusing on the one na

rrow e x ception

20in the regulations with respec t to one ty pe of ve hicle that mig ht be used by a license d sightsee ing tour company , plaintiffs totally ignor e the “ g uiding or

direc ting” component of the definition of a tour g uide, which is the c entra l focus of the regulations at issue in this case. See G onzalez-Vera v. Townley , 597 F. Supp. 2d 98, 101 (D.D .C. 2009) (“‘ [C ]ourts m ust give eff ect, if possible, to

ever y clause and wor d’” of

a re g ulation.) (quoting Wil liams v. Taylor, 592 U.S. 362, 364 (2000))

. 9 The Court also disag ree s with plaintiffs’ argument that the examination require ment somehow shows that “the licensing require ments are all g ear ed towar d confirminga tour g uide’s ability

to communicate a dequate ly ,” PI Reply & MTD Opp. at 4, and thus a re a imed at spee ch. Althoug h the Court has not revie wed a n actua l copy

of the e x amination, acc ording to the DCRA, questions may come f rom any of the followingcate g ories: Arc hitectura l; Dates; Gover nment; Historical Events; L andmar k Building s; L ocations; Monuments, Memorials; Museums and Art Galler ies; Parks, Gar dens and Z oo Aquar iums; P residents; Sculptures and Statutes; Universities; Pictures; Reg ulations. D I S T R I C T O F C O L U M B I A S I G H T S E E I N G T O U R G U I D E P R O F E S S I O N A L L I C E N S I N G E X A M I N A T I O N S T U D Y R E F E R E N C E , http:// www.a sisvcs.com/publications/publis t.cg i? st=09& ind= TG& CPC at= TG09STATEREG (la st visit ed F eb. 24, 2011). The Court ag ree s with defenda nt that the purpose

Even a part fr om the distinction ex plained above , the Court suspects that this 9 exception may

also have been inc luded in the tour g uide licensingscheme beca use driver s of such sig htseeingvehicles a re a lrea dy regulated under

another Title of the municipal re g ulations, which wa s neither discusse d nor cited by the par ties. Section 1000 of Title 31 of the municipal regulations provides that “[n] o person sha ll operate or per mit to be operate d any

vehicle f or sightsee ing pur

poses unless a c ertifica

te per mitti ng that use is issued by the Chairper son of the District of Columbia Taxi cab Commission.” D.C. M U N . R E G S . T I T . 31, § 1000.3. Those who wish to obtain a “lice nse to operate a[] . . . s ightse eing vehicle” — the bus driver s — alrea dy must meet minim um standards of g ood moral cha rac ter a nd health re quirements, id. § 1008.1, and must take a

test conce rning “knowledg e of the Metropolitan Are a.” I d. § 1008.4. 21of this examination i s to ensure some minimal compete nce a nd knowledg e for

those who “g uid[ e] or direc t[ ] people” ar ound the District of Columbia — whether they choose to spea

k or not. The Court there fore finds that the tour g uide licensingregulations are c ontent neutra l.

3. I ntermediate Scrutiny Content based re gulations of speec h are constitutional only if they withstand strict scrutiny . United States v. Play boy Entertainment Gr oup, I nc., 529 U.S. 803, 813 (2000). Content neutral re g ulations, by contra st, are subje ct only to an intermediate scrutiny analy sis. Emerg ency

Coal. to Defe nd Educ. Tr avel v. U.S. De p’t of the Tr easur y , 545 F.3d 4, 12 ( D.C. Cir. 2008) (c iting United States v. O’ Br ien, 391 U.S. 367, 377, 388 (1968)) . Be cause the Court conclude s that both the statute and the r egulations at issue in this case ar e conte nt neutral, they must be examined “under a familiar multipart test: First, the r egulation may not deleg ate ove rly broad lice nsing discr etion to a g overnme nt official. Sec ond, the sche me must be narr owly tailored to ser

ve a sig nificant g overnme ntal interest. And third, it must leave ope n ample alternatives for c ommunication.” B oardle y v. U.S. Dep’t of the I nterior, 615 F .3d at 516; see also Enten v. District of Columbia, 675 F. Supp. 2d at 51 ( content neutr al licensingrequire ments must be “nar

rowly tailored” to serve a

signific ant g overnme ntal interest; must “leave open ample alternative channe ls of communication”; and must “not unduly deleg ate a

uthority to a g overnme nt official” ).

First, the Court conc ludes that the tour guide licensingscheme does not deleg ate overly broad lice nsing discr etion to the DCRA. As discussed, the re gulations require that an applicant be at least e ighte en year s old, be profic ient in Eng lish, have not bee n convicted of

22cer

tain specifie d felonies, a

nd pass an e x amination that, acc ording to the DCRA, require s an applicant to answ er c orre ctly 70 out of 100 questions on multi ple topics conc erning the District. See D.C. M U N . R E G S . T I T . 19, § 19-1203. These specific ations are “suff iciently ‘nar row, objective, a

nd definite’ that they

do not constitute an undue de leg ation of authority to the DCRA or g ive it the kind of discre tion that could become a ‘mea ns of suppressinga par

ticular viewpoint.’” Ente n v. District of Columbia, 675 F. Supp. 2d at 54 (quoting A.N.S.W.E.R. C oal. v. Kempthorne , 537 F. Supp. 2d at 197).

Second, the lice nsing sc heme is nar rowly tailored to ser

ve a sig nificant g overnme nt interest. Acc ording to defe ndant, this scheme

helps ensure that profe ssional tour g uides will be reliable and reputa ble, and e nables the D istrict to monit or the business and prac tice of tour guides . . . to g uara ntee c ompliance with District law and c ontinued protec tion of consumers f rom “ig noranc e, incapa city

or imposition.” PI Opp. & MTD at 30. As de fenda nt notes, a re cent study

shows that the District is the third-most popular tourist destination in America, which attra cts approximately fiftee n milli on visitors each y ear . I d. at 31. I t is estimated, acc ordingto the defe ndant, that trave l and tourism supports more than 66,000 f ull-time jobs in t he District, g ener ating some $2.6 billion i n wag es. I d. Thus, visitors and District residents alike “ are entitled . . . to have minimal competenc e standards f

or tour guides . . . , who ca n be held r esponsible for the ir business prac tices.” I d. at 35. Clearly , the promotion of a major industry and the pr otection of the g ener al welf are of society are signific ant g overnme nt interests. See Smith v. Ci ty of F ort L auder dale, F l., 177 F.3d 954, 956 (11th Cir. 1999) (upholding content neutr al city regulations proscribingsoliciting, beg g ing, or

panhandlingin a spec ified ar ea be cause the re g ulations were narr owly tailored to

23provide “ a saf e, plea sant environment” and to pre vent an a dverse impact on tourism); One World One F amily

Now v. City

of Miami Be ach, 175 F .3d 1282, 1288 (11th Cir. 1999) (“ There is . . . no question that the city ’s . . . intere st in creating a n aesthe tic ambiance which will attrac t tourists . . . is a substantial g overnme nt interest . . . .”) ; see a lso United States v. Mahoney , 247 F.3d 279, 286 (D.C. Cir. 2001) (statingthat the g overnme nt has a sig nificant intere st in “‘ensuringpublic safe ty and orde r’” ) (quoting Schenck v. Pro- Choice Ne twork of W. N.Y., 519 U.S. 357, 376 (1997)) ; cf. People v. B owen, 175 N.Y .S.2d 125, 128 (N.Y. Ct. Spec. Sess. 1958) (Tour g uides have “ the re sponsibili ty

of see ing that the strang ers in our midst are proper ly car ed for and g uided. Guides must be per sons of knowledg e and integ rity — not steere rs for f

ly -by -nig ht operators. I t is a matter of public c oncer n and intere st that they

be ca ref ully supervised.” ). Wit h respe ct to whether

the licensingscheme is narrow ly tailored, de fenda

nt maintains that the regulations “are narr owly draw n, beca

use they do not prohibit all commercial sightsee ing a ctivity , but merely preve nt unlicensed tour guides from c onducting paid tours.” PI Opp. at MTD at 25. Plainti ffs disag ree , arguing that there a re ma ny other less-r estrictive options: for e x ample, the District of Columbi a could provide c ity -oper ated e ducational f orums or hire its own tour g uides; or the District could a dopt a voluntary cer tification prog ram. Mot. for PI at 11-12. I t is established, howeve r, that the District is not require d to adopt the least re strictive means of pur suing its intere sts. See Americ an L ibrary Ass’n v. Reno, 33 F .3d 78, 88 (D.C. Cir. 1994) (“ [A] narr owly

tailored re g ulation need not be the least re strictive or lea st intrusive means of ser ving the g overnme nt’s content-ne utral intere sts.”) (inter nal quotations and citation omitted). A content ne utral statute or r egulation will meet the narr ow-tailoringrequire ment “if a

24substantial portion of the burde n it impos es fur thers the Gove rnment’s intere st, even thoug h a less intrusive alternative might also e x ist.” I d.

Under the re g ulations, indivi duals who wa nts to act as for -prof

it tour guide s, among other thing s, cannot have committed ce rtain spec ified fe lonies and must pass an examination concer

ning g ener al knowledg e about the D istrict. The Court conc ludes that these basic re quirements ar e nar rowly tailored to substantially

further (1) the pur

pose of pr oviding f

or the g ener al welf

are of society

by attempting to e nsure that those w ith serious felonies on their

rec ords ar e not guiding or direc ting tourists and re sidents around the D istrict, and (2) the purpose of promoting the tourism industry by attempting to e nsure that those w ho g uide or dire ct people around the District have, at least, some minimal knowledg e about wha t and wher e they

are g uiding or

direc ting pe ople to. Finally , the licensingscheme leave s open ample a lternatives f or communication. Prior to obtaining a

license, pla intiffs “still may eng ag e in expressive ac tivity by doing e very

thing [t hey do] now ex cept f

or” c onducting their tours for profit. Enten v. District of Columbia, 675 F

. Supp. 2d at 53. The Court there fore conclude s that “the mea ns of communication ava ilable to [pl aintiffs] are a dequate .” I d.

Both the statute a

nd the re g ulations survive intermediate scrutiny revie w. There fore , plaintiffs fail to meet their burden of

establishing that they

have a substantial likelihood of succe ss on the merits of their F irst Amendment claim.

25B. Irreparable H arm Plaintiffs’ irrepa

rable harm a

rg ument rests entire ly

on their F irst Amendment claim. B eca

use the Court conc ludes that plaintiffs have not shown that the tour g uide licensing scheme violates their rig hts under the F irst Amendment, it also conclude s that plaintiffs are “not fac ed with irre para

ble har m absent the issuanc e of a n injunction.” Enten v. District of Columbia, 675 F. Supp. 2d at 54. “A lthough having one ’s protec ted spee ch chilled c an constitute an irrepa rable injury ,” plaintiffs have not shown that their r ight to fr eedom of speec h has bee n restric ted. I d. (citing Chaplaincy of F ull Gospel Churches v. Eng land, 454 F.3d a t 301) (“[T]he loss of First Amendme nt free doms, for eve n minimal periods of time, may constitute irrepa

rable injury . . . .”) ( internal quotations and c itation omit ted). 1 0

I V. CONCL USI ON The Court conc ludes that plaintiffs have not demonstrated that they are likely to preva il on the merits of their cla im that the District of Columbia tour guide licensing scheme is an unconstitutional restriction on plaintiffs’ F irst Amendment rig hts. Further more, the Court conclude s that plaintiffs are not fac ed with irre para ble har m in the absenc e of a

n injunction. Absent a showingof a likelihood of suc cess on the me rits and irre para ble injury , the two

rema ining pr ong s, balanc e of ha rms and the public inter est, nee d not be addr essed. See Enten v. District of Columbia, 675 F. Supp. 2d at 54.

Plaintiffs assert that this tour g uide licensingscheme would limittheir ability to 1 0 hire pa rt-time g uides, and, “ without these part- time guide s, [pl aintiffs ar e] not sure [they ] could keep the business g oing — at least not in its current for m.” Main De cl. ¶ 24. To the e x tent that this is an irrepar able ha

rm argument, this assertion sug g ests nothing more than g ener al ec onomic harm. Such a

n argument fails under

the rule that “‘e conomic har m does not constitute irrepa rable injury .’” SterlingCommercial Credit-Michig an, L L C v. Phoenix I ndus. I , L L C, Civi l Action No. 10-2332, 2011 WL263674, at *6 (D.D .C. J an. 28, 2011) ( quoting Da vis v. Pension Be nefit Gua

r. Corp., 571 F .3d 1288, 1295 (D.C. Cir. 2009)). 26For the fore g oing r easons, plaintiffs’ motion for a pre liminary injunction [Dkt. No. 7] will be DENI ED and de fenda nt’s motion to di smiss [ Dkt. No. 9] will be DEN I ED without prejudice. A n Orde r consistent with this Opinion shall i ssue this same day

.

SO ORDERED. /s/ PAULL . FRI EDMAN DATE: F ebrua

ry 25, 2011 United States District J udg e

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