United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2014 Decided June 27, 2014 

No. 13-7063 

TONIA EDWARDS AND BILL MAIN, 

APPELLANTS

v. 

DISTRICT OF COLUMBIA, 

APPELLEE

Consolidated with 13-7064 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:10-cv-01557) 

Robert 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 
2 

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 
3 

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. 

 

1 Segways are self-balancing, personal-transport vehicles. 
4 

A 

Several laws govern various aspects of these activities. 

First, Segs in the City is required to have a general business 

license. See D.C. CODE § 47-2851.03d. Additionally, the 

city has rules governing the use of Segways. See D.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. See D.C. MUN. REGS. tit. 19, § 1209.2; see also D.C. 

CODE § 47-2846. 

Altogether, five requirements must be satisfied to obtain 

a tour-guide license. See D.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) 
5 

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 
6 

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

 

 

2 In case No. 13-7063, Appellants also timely appealed the 

district court’s denial of their motion for preliminary injunction. 

On April 25, 2013, we consolidated these two appeals. Because 

our opinion decides the underlying merits, we dismiss No. 13-7063 

as moot. 

 
7 

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

 

 

3 The District’s brief suggests the tour-guide license, like 

licensing schemes for lawyers and psychiatrists, is merely an 

occupational license subject only to rational basis review. See 

Appellee’s Br. at 16, 23–24 (citing cases applying rational basis 

review); see also id. at 36–38 (citing Lowe v. SEC, 472 U.S. 181, 

232, 235 (1985) (White, J., concurring), for the proposition that 

tour guides maintain a “relationship of trust and reliance” with their 

customers thus warranting professional licensure). The District is 

wrong. “One who takes the affairs of a client personally in hand 

and purports to exercise judgment on behalf of the client in the light 

of the client’s individual needs and circumstances is properly 

viewed as engaging in the practice of a profession.” Lowe, 472 

U.S. at 232. Appellants do no such thing. They provide virtually 

identical information to each customer. Cf. Moore-King v. Cnty. of 

Chesterfield, Va., 708 F.3d 560, 564, 569 (4th Cir. 2013) 

(upholding a fortune-teller licensing scheme under rational basis 

review because the appellant advised clients on “specific inquiries 

about their businesses, relationships, or other personal matters”). 
8 

 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 regulations4

] would be valid or that the 

statute lacks any plainly legitimate sweep.” United States v. 

Stevens, 559 U.S. 460, 472 (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 (2008). In neither 

case, however, must Appellants show injury to themselves. 

See Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 

947, 958 (1984) (“Facial challenges to overly broad statutes 

are allowed not primarily for the benefit of the litigant, but for 

the benefit of society—to prevent the statute from chilling the 

First Amendment rights of other parties not before the 

court.”); see also Broadrick v. Oklahoma, 413 U.S. 601, 612 

(1973). 

Conversely, to prevail on an as-applied First Amendment 

challenge, Appellants must show that the regulations are 

unconstitutional as applied to their particular speech activity. 

 

In any event, given the regulations’ incoherence, we doubt the 

District could survive even rational basis review. 

4 As noted in their briefs and confirmed during oral argument, 

Appellants challenge only the regulations defining a tour guide 

(D.C. MUN. REGS. tit. 19 § 1200.1), the exam requirement and 

related fees (D.C. MUN. REGS. tit. 19, § 1203.3), and the tour-bus 

driver exemption (D.C. MUN. REGS. tit. 19, § 1204.3). See

Appellants’ Br. at 7–8, 9, 22–23; Oral Arg. at 11:28–12:30. 
9 

See Members of City Council of L.A. v. Taxpayers for 

Vincent, 466 U.S. 789, 802–03 (1984). “[T]he distinction 

between facial and as-applied challenges . . . goes to the 

breadth of the remedy employed by the Court, not what must 

be pleaded in a complaint.” Citizens United v. FEC, 558 

U.S. 310, 331 (2010). The substantive rule of law is the 

same for both challenges. Legal Aid Servs. of Or. v. Legal 

Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010). We 

conclude the challenged regulations are both incongruent as 

to any tour guide and overbroad. 

A 

 In examining the constitutionality of the challenged 

regulations, we will assume, arguendo, the validity of the 

District’s argument that the regulations are content-neutral 

and place only incidental burdens on speech. The First 

Amendment provides that Congress “shall make no 

law . . . abridging the freedom of speech.” U.S. CONST. 

amend. I. Content-neutral regulations on speech are subject 

to intermediate scrutiny. Under this standard, a government 

regulation is constitutional if (1) “it is within the 

constitutional power of the Government”; (2) “it furthers an 

important or substantial governmental interest”; (3) “the 

governmental interest is unrelated to the suppression of free 

expression”; (4) “the incidental restriction on alleged First 

Amendment freedoms is no greater than is essential to the 

furtherance of that interest,” United States v. O’Brien, 391 

U.S. 367, 377 (1968); and (5) the regulation leaves open 

ample alternative channels for communication, see Clark v. 

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). 

The failure to satisfy any prong of the test invalidates the 

regulation. Cmty. for Creative Non-Violence v. Turner, 893 

F.2d 1387, 1392 (D.C. Cir. 1990). 
10 

1 

 All parties agree promulgating the licensing regulations 

is within the District’s constitutional power. See Appellants’ 

Br. at 13 (noting the suit “is not a challenge to the District of 

Columbia’s ability to regulate businesses generally or require 

them to obtain licenses”). Thus, the first O’Brien prong is 

satisfied. Nor could a serious argument be made otherwise, 

for Congress long ago delegated to the District the police 

power to regulate businesses and occupations. See, e.g., 

District of Columbia v. John R. Thompson Co., 346 U.S. 100, 

113 & n.9 (1953); see also Watson v. Maryland, 218 U.S. 

173, 176 (1910) (“It is too well settled to require discussion at 

this day that the police power of the states extends to the 

regulation of certain trades and callings . . . .”). Additionally, 

because we assume the District’s licensing scheme is, on 

balance, content-neutral, the third prong of the O’Brien test 

also is satisfied. See Am. Library Ass’n v. Reno, 33 F.3d 78, 

84 (D.C. Cir. 1994). Accordingly, the second, fourth, and 

fifth prongs remain. 

2 

 As to prongs two and four, Appellants present two 

arguments. First, they contend the record is “utterly devoid” 

of evidence that the burdens of studying for and passing the 

100-question exam “do anything at all to advance a legitimate 

government objective.” Appellants’ Br. at 43. Second, they 

argue there is no evidence in the record the District’s interests 

would be achieved less effectively absent the exam 

requirement. We agree. 

 Collectively, prongs two and four of the O’Brien test 

query whether the challenged regulations are narrowly 

tailored to further a substantial government interest. See 
11 

O’Brien, 391 U.S. at 381–82. A regulation is “narrowly 

tailored” when it does not “burden substantially more speech 

than is necessary to further the government’s legitimate 

interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799 

(1989). 

 

As a threshold matter, Appellants do not appear to 

dispute the District’s substantial interest in promoting the 

tourism industry and economy. The District attracts 

approximately fifteen million visitors each year and supports 

more than 66,000 tourism-related, full-time jobs, which 

generate some $2.6 billion in wages. See Edwards, 765 F. 

Supp. 2d at 18. Undoubtedly, promoting a major industry 

that contributes to the economic vitality of the District is a 

substantial government interest. See Smith v. City of Ft. 

Lauderdale, Fla., 177 F.3d 954, 955–56 (11th Cir. 1999) 

(recognizing Florida’s substantial interest in promoting 

tourism—“one of Florida’s most important economic 

industries”); Ctr. for Bio-Ethical Reform, Inc. v. City & Cnty. 

of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006) 

(acknowledging Hawaii’s substantial interest in protecting 

and promoting the tourism industry). 

That the District’s asserted interests are substantial in the 

abstract, however, does not end our inquiry. To satisfy 

narrow tailoring, the District must prove the challenged 

regulations directly advance its asserted interests. See United 

States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (“There must 

be a direct causal link between the restriction imposed and the 

injury to be prevented.”). “This burden is not satisfied by 

mere speculation or conjecture; rather, a governmental body 

seeking to sustain a restriction on . . . speech must 

demonstrate that the harms it recites are real and that its 

restriction will in fact alleviate them to a material degree.” 

Edenfield v. Fane, 507 U.S. 761, 770–71 (1993); see also 
12 

Lederman v. United States, 291 F.3d 36, 44 (D.C. Cir. 2002) 

(noting that courts “closely scrutinize challenged speech 

restrictions to determine if they indeed promote the 

Government’s purposes in more than a speculative way”). 

To be sure, the District is not required to produce 

empirical data “accompanied by a surfeit of background 

information.” See Lorillard Tobacco Co. v. Reilly, 533 U.S. 

525, 555 (2001). Instead, the Supreme Court has “permitted 

litigants to justify speech restrictions by reference to studies 

and anecdotes pertaining to different locales altogether, or 

even, in a case applying strict scrutiny, to justify restrictions 

based solely on history, consensus, and simple common 

sense.” Id. That said, the burden remains on the District to 

establish the challenged regulations’ efficacy, and a 

regulation cannot be sustained “if there is little chance that the 

restriction will advance the State’s goal.” Id. at 566. 

The District rehearses a plethora of harms it claims to 

forestall with the exam requirement: (1) unscrupulous 

businesses, Edwards, 943 F. Supp. 2d at 122; (2) tourists 

whose welfare is jeopardized by tour guides lacking a 

minimal level of competence and knowledge, id.; (3) tour 

guides lacking “minimal knowledge about what and where 

they are guiding or directing people to,” id.; (4) consumers 

unprotected from unknowledgeable, untrustworthy, 

unqualified tour guides, id. at 123; (5) tour guides lacking “at 

least a minimal grasp of the history and geography of 

Washington, D.C.,” id.; (6) visitors vulnerable to “unethical, 

or uninformed guides,” id.; (7) tourists treated unfairly or 

unsafely, see Appellee’s Br. at 24; (8) tourists who are 

“swindled or harassed by charlatans,” see id.; (9) degradation 

of the “quality of the consumer’s experience,” see id. at 36; 

(10) “tour guides . . . too unserious to be willing to study for a 

single exam,” see id.; and (11) tour guides “abandon[ing 
13 

tourists] in some far-flung spot, or charg[ing] them additional 

amounts to take them back,” see id. at 38. Together, these 

harms all fall under the banner of the District’s interest in 

“maintaining, protecting, and promoting [its] tourism industry 

and economy.” See Appellee’s Br. at 19. 

Despite the District’s seemingly talismanic reliance on 

these asserted problems, the record contains no evidence 

ill-informed guides are indeed a problem for the District’s 

tourism industry. The only record “evidence” supporting the 

District’s beliefs regarding the perils of unlicensed tour 

guides is the District’s 30(b)(6) deposition testimony that 

guides with criminal convictions might pose a danger, though 

no evidence exists they actually have. See J.A. 154. This 

will not do. See Turner Broadcasting Sys., Inc. v. FCC, 520 

U.S. 180, 196 (“[I]n the realm of First Amendment 

questions[,] . . . the [legislature] must base its conclusions 

upon substantial evidence.”). The District’s reliance on a 

Washington Post article dating from 1927 to justify the exam 

requirement is equally underwhelming. See Appellee’s Br. at 

4, 19, 46. The article merely establishes that, nearly a 

century ago, the newspaper expressed concern about 

unscrupulous or fraudulent charitable solicitation and that an 

unidentified number of persons said self-styled tour guides 

were overly aggressive in soliciting business. Reliance on 

decades-old evidence says nothing of the present state of 

affairs. Current burdens demand contemporary evidence. 

See Shelby Cnty. Ala. v. Holder, 133 S. Ct. 2612, 2627 (2013) 

(“[A] statute’s current burdens must be justified by current 

needs.”); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 

U.S. 781, 802 (1988) (rejecting the government’s reliance on 

antiquated evidence to justify current burdens); Nashville, C. 

& St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935) (“A statute 

valid when enacted may become invalid by change in the 

conditions to which it is applied.”). 
14 

Nor are the District’s suppositions validated by studies, 

anecdotal evidence, history, consensus, or common sense. 

The District says “many other cities . . . have concluded that 

licensing tour guides is warranted to promote the tourism 

industry and protect consumers.” Appellee’s Br. at 46. By 

“many,” the District means exactly five.5 Yet, whatever the 

value of this evidence, it is diminished to the vanishing point 

by the scores of other U.S. cities that have determined 

licensing tour guides is not necessary to maintain, protect, or 

promote the tourism industry. Said differently, five cities do 

not a consensus make. See Edenfield, 507 U.S. at 771 

(dismissing as insufficient anecdotal evidence the fact that 

Florida was one of four states with similar regulatory 

schemes); cf. Appellee’s Br. at 46 (“[L]aws, legislative policy 

statements, and case law from other cities with heavy tourist 

trades reflect that history, consensus, and common sense 

justify protecting the District’s tourists from unscrupulous, 

unlicensed guides.”). Of course, the District need not 

demonstrate consensus before relying on evidence from other 

locales. See, e.g., City of Renton v. Playtime Theaters, Inc., 

475 U.S. 41, 50–51 (1995) (permitting reliance on the 

well-documented, detailed experience and studies of a single 

locale). However, an indiscriminate survey of the laws of 

 

5 Although the District’s brief identified five cities with 

tour-guide licensing requirements—Charleston, SC; New Orleans, 

LA; New York, NY; Savannah, GA; and Philadelphia, PA, see

Appellee’s Br. at 8–10, 24, 27—Philadelphia appears to have 

abandoned (at least for the time being) any intention of enforcing 

its law. See Tait v. City of Philadelphia, 639 F. Supp. 2d 582, 

587–88 (E.D. Pa. 2009) (noting that the city testified it was “not 

ready to oversee the application and certification process [for tour 

guides] . . . primarily due to a lack of resources”). The actual fifth 

city, Williamsburg, Virginia, came to the court’s attention as a 

result of Appellants’ candor and due diligence. See Appellants’ 

Reply Br. at 31 n.6. 
15 

other jurisdictions without marshaling any evidence about 

why those laws were enacted and how the regulations are 

enforced is not sufficient. See Edenfield, 507 U.S. at 771 

(demanding evidence even when relying on similar legislation 

enacted in other locales). 

The District can find no refuge in National Association of 

Manufacturers v. Taylor, 582 F.3d 1 (D.C. Cir. 2009). There 

we upheld the Lobbying Disclosure Act of 1995, which was 

enacted because of concerns lobbyists were skirting the 

disclosure requirements of the 1946 Federal Regulation of 

Lobbying Act. 582 F.3d at 6. The government championed 

the law as a public information measure. Id. at 12. 

Plaintiffs argued such an “informational interest” must be 

validated by “studies, statistics, or empirical evidence 

explaining why [they] should be required to file disclosure 

statements.” Id. at 15. We disagreed, but did so with the 

benefit of a far greater corpus of evidence than the District 

presents here. 

First, the government’s “vital national interest” in public 

disclosure was buttressed by more than fifty years of Supreme 

Court precedent. See id at 6 (citing United States v. Harriss, 

347 U.S. 612, 625–26 (1954)); Communist Party of U.S. v. 

Subversive Activities Control Bd., 367 U.S. 1, 97–100 (1961); 

Meese v. Keene, 481 U.S. 465, 485 n.19 (1987); McIntyre v. 

Ohio Elections Comm’n, 514 U.S. 334, 354 n.18 (1995); see 

also Citizens United v. FEC, 588 U.S. 310, 369 (2010). The 

District points to no such precedent. Second, unlike here, the 

statute was bolstered by a legislative record and contemporary 

newspaper accounts that precisely explained the existing ills 

at which the law was aimed. See Taylor, 582 F.3d at 15 & 

n.9. Here, the District offers only speculation and senescent 

stories. Lastly, the statute was premised on the notion that 

“good government requires greater transparency”—a “value 
16 

judgment” that was not “susceptible to empirical evidence.” 

Id. at 16. Here, the District’s core premise is that tour guides 

who have not passed a multiple-choice exam will harm the 

tourism economy. See Appellee’s Br. at 19. But this is 

exactly the sort of “economic” harm we distinguished in 

Taylor as being “susceptible to empirical evidence.” See 

Taylor, 582 F.3d at 16. 

Indeed, the Supreme Court has demanded evidence for 

the existence of harms in other contexts, too. See, e.g., 

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of 

Stratton, 536 U.S. 150, 169 (2002) (holding an ordinance 

regulating door-to-door solicitation unconstitutional in part 

because there was no “evidence of a special crime problem 

related to door-to-door solicitation in the record”); 

Edenfield, 507 U.S. at 771 (holding as unconstitutional a 

statute banning accountants’ in-person solicitation because 

there was no evidence solicitation created the “dangers of 

fraud, overreaching, or compromised independence that the 

[government] claim[ed] to fear”); Riley, 487 U.S. at 790 

(rejecting the State’s interest in regulating the fairness of fees 

a professional fundraiser may charge charities because there 

was no evidence the existing fees were “anything less than 

equitable”). 

 

Even if we indulged the District’s apparently active 

imagination, the record is equally wanting of evidence the 

exam regulation actually furthers the District’s interest in 

preventing the stated harms. Curiously, the District trumpets 

as a redeeming quality the fact that, once licensed, “[t]our 

guides may say whatever they wish about any site, or 

anything else for that matter.” Appellee’s Br. at 27 (citing 

Kagan v. City of New Orleans, 957 F. Supp. 2d 774, 779 

(E.D. La. 2013)). But we are left nonplussed. Exactly how 

does a tour guide with carte blanche to—Heaven 
17 

forfend—call the White House the Washington Monument 

further the District’s interest in ensuring a quality consumer 

experience?6 Also puzzling is the applicability of the exam 

requirement to specialty tour guides, such as those focused on 

ghost, food or movie tours.7 A general exam requirement is 

ill-suited to ensuring such specialty guides are well informed. 

 And the existence and persistence of such varied themes 

highlights how tourism is as much about entertaining as 

educating. 

 

6 We do not mean to suggest the District could somehow police 

the accuracy of a tour guide’s speech by, for example, requiring 

that tour guides adhere to a script. Even if such speech advanced 

the District’s interest in ensuring a quality consumer experience, its 

compulsion would doubtless be unconstitutional. See Rumsfeld v. 

Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61 

(2006) (“Some of [the] Court’s leading first Amendment precedents 

have established the principle that freedom of speech prohibits the 

government from telling people what they must say.”); see also 

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 11 (1986) 

(“[A]ll speech inherently involves choices of what to say and what 

to leave unsaid.”). That a lawyer’s speech is policed for accuracy 

via malpractice suits and discipline threats does not compel a 

contrary conclusion. Such a distinction serves only to underscore 

the vast differences in kind between a professional’s speech and 

that of a tour guide’s. See Part II n.3, supra. 

7 See, e.g., Ghosts of LaFayette Park, WASHINGTON DC GHOST 

TOURS, http://www.dcghosttours.com/ (last visited June 13, 2014); 

Experience Culinary DC, DC METRO FOOD TOURS, 

http://dcmetrofoodtours.com/ (last visited June 13, 2014); TV and 

Movies Sites Tour of Washington DC, TRUSTED TOURS &

ATTRACTIONS, http://www.trustedtours.com/store/tv-and-movie-sit

es-tour-of-washington-dc.aspx (last visited June 13, 2014); see also

J.A. 169, 174. 
18 

The District also claims the exam requirement furthers its 

interests by “‘weeding out tour guides too . . . unserious to be 

willing to study for a single exam.’” Appellee’s Br. at 36 

(quoting Kagan, 957 F. Supp. 2d at 780). Presumably, the 

effort required to study for and pass the exam, along with its 

$200 cost, are dispositive factors in winnowing the gamesome 

from the genuine. We are not persuaded. Perhaps most 

fundamentally, what evidence suggests market forces are an 

inadequate defense to seedy, slothful tour guides? To state 

the obvious, Segs in the City, like any other company, already 

has strong incentives to provide a quality consumer 

experience—namely, the desire to stay in business and 

maximize a return on its capital investment. Lest there be 

any doubt, the sums involved are not insignificant. For 

starters, Segs in the City is required to obtain a general 

business license. See D.C. CODE § 47-2851.03d. To obtain 

a license, Segs in the City must remit $324.50 biennially, 

which consists of the following: (1) $200 license fee; (2) $70 

application/renewal fee; (3) $25 endorsement fee; and (4) 

$29.50 technology fee. See D.C. MUN. REGS. tit. 17, § 500. 

Appellants have operated Segs in the City since 2004. 8 

What’s more, the least expensive Segway model, the i2, costs 

approximately $6,500. 9 Appellants maintain a fleet of at 

least eleven Segways. See J.A. 170. And the foregoing 

expenditures are to say nothing of the other business-related 

 

8 See SEGS IN THE CITY, 

http://www.segsinthecity.com/segsafaris.html (last visited May 22, 

2014) (“Segs in the City has been conducting trainings and Segway 

Safaris since 2004 and is the most experienced and safest operator 

in the area.”). 

9 See, e.g., SEGWAY OF ANNAPOLIS,

http://www.segwayofannapolis.com/store/index.php?l=product_det

ail&p=70 (last visited May 22, 2014). 
19 

expenses, like insurance and maintenance, Appellants must 

shoulder. These outlays are not unique to Segs in the City; 

they presumably are equally expensive—if not more so—for 

tour operators that rely on pedicab, bus, trolley, or boat. 

Further incentivizing a quality consumer experience are 

the numerous consumer review websites, like Yelp and 

TripAdvisor, which provide consumers a forum to rate the 

quality of their experiences. One need only peruse such 

websites to sample the expressed outrage and contempt that 

would likely befall a less than scrupulous tour guide. Put 

simply, bad reviews are bad for business. Plainly, then, a 

tour operator’s self-interest diminishes—in a much more 

direct way than does the exam requirement—the harms the 

District merely hypothesizes. See City of Ladue v. Gilleo, 

512 U.S. 43, 58 (1994) (observing that “[r]esidents’ 

self-interest [in maintaining their own property values] 

diminishe[d] the danger of the unlimited proliferation of 

residential signs” the city feared). That the coal of 

self-interest often yields a gem-like consumer experience 

should come as no surprise. In his seminal work, The Wealth 

of Nations, celebrated economist and philosopher Adam 

Smith captured the essence of this timeless principle: “It is 

not from the benevolence of the butcher, the brewer or the 

baker that we expect our dinner, but from their regard to their 

own interest.” ADAM SMITH, AN INQUIRY INTO THE NATURE 

AND CAUSES OF THE WEALTH OF NATIONS 12 (Digireads.com 

Publishing 2004) (1776). 

 

There is little mystery, therefore, that tour guides possess 

every incentive to provide quality tours.10 With this concept 

 

10 Naturally, market forces are but one factor among a group of 

relevant considerations when determining the constitutionality of a 

government’s regulation. Said differently, the presence of market 
20 

in mind, what, pray tell, does passing the exam have to do 

with regulating unscrupulous tour businesses and unethical 

guides? How does memorization of addresses and other, 

pettifogging data about the District’s points of interest protect 

tourists from being swindled or harassed by charlatans? 

Why would a licensed tour guide be any less likely to treat 

tourists unfairly and unsafely by abandoning them in some 

far-flung spot or charging additional amounts for return 

passage?—surely, success on the District’s history exam 

cannot be thought to impart both knowledge and virtue. The 

District never bothers to engage with these and other basic 

inquiries. The questions it does answer, however, serve only 

to underscore the substantial mismatch between its stated 

objectives and the means chosen to achieve those goals. 

During oral argument, the District made several telling 

admissions, revealing the scheme’s lack of coherence and 

impermissibly underinclusive scope. Two circumstances 

render a regulation fatally underinclusive. The first is when 

“an exemption from an otherwise permissible regulation of 

speech may represent a governmental attempt to give one side 

of a debatable public question an advantage in expressing its 

views to the people.” Gilleo, 512 U.S. at 51. The other is 

triggered where, as here, there is an arbitrary exemption from 

 

forces does not require the District to surrender the tour guide 

industry to the free market, though, as a practical matter, nearly 

every city in America has so surrendered without any ill effect. 

See Part II.A.2 n.3, supra. The District remains free to impose any 

number of regulations on the industry including, for example, 

limiting the size of a tour group, prohibiting use of amplified 

sounds after a certain hour, restricting tours to certain parts of town, 

requiring that tours cease after a certain hour, and outlawing 

tour-guide solicitation in city streets. An exam requirement does 

not materially add to what are already robust consumer protection 

measures. 
21 

or “underinclusiveness of the scheme chosen by the 

government [that] may well suggest . . . the asserted interests 

either are not pressing or are not the real objects animating 

the restriction on speech.” Glickman v. Wileman Bros. & 

Elliott, Inc., 521 U.S. 457, 493 (1997). 

Here, the District conceded Appellants could, without a 

license, lecture at a single point of interest, i.e., stand in front 

of the White House and charge tourists a fee to audit the 

narration. See Oral Arg. at 15:36–16:09. But under such an 

arrangement, what would stop unlicensed tour guides from 

stationing themselves at various points of interest throughout 

the city and lecturing for a fee? If the stated harms are 

genuine, would not such a provision undermine the District’s 

interest in promoting the tourism industry? Second, and 

equally perplexing, the District acknowledged that, pursuant 

to an exemption in the regulations, a tour-bus driver could, 

without a license, escort and direct tourists to points of 

interest, provided the driver refrained from speaking and 

relied exclusively on any audio recording for narration. See 

id. at 18:10–18:26. However, no credible attempt was made 

to explain how the potentially perverse outcomes would 

further the District’s stated interests. When asked, for 

example, whether the regulations would permit a tour bus to 

recruit a drunk off the street to prerecord the audio narration, 

the District unequivocally answered, “yes.” Id. at

23:22–23:58. 

 

Similarly baffling was the District’s wavering agreement 

the regulations would permit Appellants to give unlicensed 

tours if they also used an audio recording, since clause one11

 

11 Clause one states unlicensed persons may not “engage[] in the 

business of guiding or directing people to any place or point of 

interest in the District.” See D.C. MUN. REGS. tit. 19, § 1200.1. 
22 

of section 1200.1 does not regulate speech. See id. at 

24:43–25:21. Myriad inconsistencies abound in that 

concession, however. Perhaps most notably, the District had, 

just minutes earlier, claimed Appellants could not, unless 

licensed, guide and direct tourists to points of interest and, 

instead of speaking, distribute pamphlets describing the 

various sites. See id. at 16:10–16:43. When pressed on the 

obvious incoherence of its admission, the District recanted, 

concluding that, although analogous to a tour bus, clause 

two12 of section 1200.1 prohibited Appellants from using an 

audio recording. See id. at 27:56–28:25. In no event, 

however, did the District offer a rational explanation for the 

tour-bus exemption.13 The District’s failure to provide any

justification—let alone a persuasive one—for the glaring 

inconsistency, effectively eviscerated what was left of the 

 

12 Clause two provides that unlicensed persons may not, “in 

connection with any sightseeing trip or tour, describe[], explain[], 

or lecture[] concerning any place or point of interest in the District 

to any person.” See D.C. MUN. REGS. tit. 19, § 1200.1 In its 

brief, the District argued Appellants lacked standing to challenge 

clause two of section 1200.1 because they “would be covered by 

the first clause since they are engaged in the business of guiding or 

directing people in the District regardless of any describing, 

explaining, or lecturing.” Appellee’s Br. at 18. Given the 

District’s admission that clause two is controlling, however, it is 

unclear whether they continue to dispute Appellants’ standing. 

13 Indeed, we doubt any rational basis for the exemption exists. 

Of the five jurisdictions requiring a tour-guide license, the District 

alone has the dubious distinction of exempting tour buses that rely 

on audio recordings. See Charleston, SC (Charleston Code § 

29-58; § 29-2); New Orleans, LA (New Orleans Code § 30-1486); 

New York, NY (N.Y. Admin. § 20-247); Savannah, GA (Savannah 

Code § 6-1508); and Williamsburg, VA (Williamsburg Code § 

9-331). 
23 

regulations’ waning credibility. See id. at 28:28–29:03. 

Why the regulations would permit a drunk’s pre-recorded 

narration on a tour bus, but proscribe the same conduct on a 

Segway, remains an enigma. What the foregoing makes 

plain, however, is that the tour-bus exemption is arbitrary and 

renders the regulations impermissibly underinclusive. 

 Underinclusiveness is not the only way in which the 

regulations fail to pass constitutional muster. If, as we 

assume, the regulations are understood primarily as a 

restriction on conduct with only an incidental effect on 

speech, they also are overbroad. This is because clause two 

of section 1200.1 would forbid an unlicensed person from 

lecturing to a tour group, even if that group is being escorted 

by a fully licensed guide. See J.A. 156 (“[I]f there’s a tour 

that is both led by licensed sightseeing guide and features 

commentary during the tour from an unlicensed individual 

who’s describing, explaining or lecturing about the sights in 

Washington, D.C., that tour is operating in violation of the 

law.”). 

Also fatal to the District’s regulatory scheme is the 

existence of less restrictive means to accomplish its interests. 

Of course, the means chosen “need not be the least restrictive 

or least intrusive.” See Ward, 491 U.S. at 798. “Rather, the 

requirement of narrow tailoring is satisfied so long as the 

regulation promotes a substantial government interest that 

would be achieved less effectively absent the regulation.” Id.

at 799. “We must therefore ask whether it is possible 

substantially to achieve the Government’s objective in less 

burdensome ways” than the exam requirement. See Alvarez, 

132 S. Ct. at 2555 (Breyer, J., concurring). We conclude the 

answer to this question is “yes.” 
24 

In contrast with the harms the District says its regulations 

prevent, proposing less restrictive means to achieve its 

objectives requires no creativity. For example, nowhere in 

the record is there any evidence unscrupulous businesses, 

which engage in unfair or unsafe practices, could not be more

effectively controlled by regulations that punish fraud or 

restrict the manner in which tour guides may solicit business. 

Likewise, no reason is offered why the threat of directionally 

challenged tour guides would not be better resolved by 

regulations requiring that tour guides carry a map or other 

navigational aid. Additionally, nowhere in the record is there 

anything to suggest a voluntary certification program—under 

which guides who take and pass the District’s preferred exam 

can advertise as “city-certified guides”—would diminish the 

quality of the consumer’s experience. In sum, the District 

has provided no convincing explanation as to why a more 

finely tailored regulatory scheme would not work. 

 

**** 

The District failed to present any evidence the problems 

it sought to thwart actually exist. Even assuming those 

harms are real, there is no evidence the exam requirement is 

an appropriately tailored antidote. Moreover, the District 

provided no explanation for abjuring the less restrictive but 

more effective means of accomplishing its objectives. 

Because this lack of narrow tailoring is hardly unique to 

Appellants, we sustain both their facial and as-applied 

challenges to the offending regulations.14 The district court’s 

 

14 Having found the District’s regulations unconstitutional due to 

lack of narrow tailoring, we need not consider whether the 

regulations permit ample alternative channels of communication. 

See Turner, 893 F.2d at 1392. 
25 

grant of summary judgment in favor of the District is, 

therefore, reversed, and we remand the case with instructions 

to grant Appellants’ motion for summary judgment.15 

So ordered. 

 

15 We are of course aware of the Fifth Circuit’s contrary 

conclusion in Kagan v. New Orleans, No. 13-30801, 2014 WL 

2460495 (5th Cir. June 2, 2014), which affirmed the 

constitutionality of a similar tour guide licensing scheme. We 

decline to follow that decision, however, because the opinion either 

did not discuss, or gave cursory treatment to, significant legal 

issues. See Burka v. U.S. Dep’t of Health & Human Servs., 142 

F.3d 1286, 1290 (D.C. Cir. 1998) (finding as unpersuasive and 

declining to follow a Fifth Circuit opinion that neglected to discuss 

or mention binding, Supreme Court precedent); Potomac Elec. 

Power Co. v. Dir., Office of Workers’ Comp. Programs, 606 F.2d 

1324, 1329 (D.C. Cir. 1979) (declining to follow Fifth Circuit 

because “it did not discuss [an] issue in its brief opinion affirming 

[the district court]”).