Case: 13-30801       Document: 00512649398       Page: 1   Date Filed: 06/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                         FILED
                                                                      June 2, 2014
                                      No. 13-30801
                                                                     Lyle W. Cayce
                                                                          Clerk
CANDANCE KAGAN; MARY LACOSTE; JOYCELYN M. COLE, erroneously
named as Jocelyn M. Cole; ANNETTE WATT,

                                                 Plaintiffs-Appellants
v.

CITY OF NEW ORLEANS, Louisiana,

                                                 Defendant-Appellee




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before REAVLEY, JONES, and GRAVES, Circuit Judges. *
REAVLEY, Circuit Judge:
      The City of New Orleans requires those who conduct tours for hire in the
City to have a tour guide license.           Four tour guides object to the license
requirement on the ground that it violates their First Amendment rights and
seek a declaratory judgment and injunction for relief.            The district court
granted summary judgment for the City, and we affirm.
      The New Orleans Code requires the license for a person to charge for
tours to “the City’s points of interest and/or historic buildings, parks or sites,
for the purpose of explaining, describing or generally relating the facts of



      *   Judge Jones concurs in the judgment only.
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                                  No. 13-30801
importance thereto.”    To obtain the license, the applicant must pass an
examination testing knowledge of the historical, cultural and sociological
developments and points of interest of the city, must not have been convicted
of a felony within the prior five years, pass a drug test, and pay a $50 fee when
first applying or $20 when renewing after two years. Violators are subject to
punishment by up to five months imprisonment and $300 in fines.
      Reviewing the law facially, we see its purpose to be clear. The City wants
to promote and protect visitors there as they see and enjoy all of the attractions
of New Orleans; its history and sights on to its food and music. Conventions
bring thousands there and often program tours of the city. To put it simply,
New Orleans thrives, and depends, upon its visitors and tourists. For the
benefit of those visitors the City identifies those tour guides who have licenses
and are reliable, being knowledgeable about the city and trustworthy, law-
abiding and free of drug addiction.
      Without contesting that as the only purpose or effect of the law, plaintiffs
seek to abolish the license and will thereby defeat the purpose. They urge the
First Amendment freedom of speech as the problem. But no fault is found by
the City in what tour guides do or say. They themselves want to speak and do
the same. When a city exercising its police power has a law only to serve an
important governmental purpose without affecting what people say as they act
consistently with that purpose, how is there any claim to be made about speech
being offended?
      The district court of the District of Columbia decided in a similar case to
go beyond that question to an intermediate scrutiny review with the same
result. Edwards v. District of Columbia, 

, 118 (2013). So
will we.
      The First Amendment prevents government from restricting speech,
unless it is unprotected as is obscenity and the promotion of violence. Laws
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                                 No. 13-30801
that restrict expression because of its content are reviewed by strict scrutiny,
requiring that the government has narrowly tailored the content restriction to
a compelling interest without other means to do so. Plaintiffs insist on this
strict scrutiny by arguing the New Orleans license law is content based. And
they cite cases all of which affect speech. For example, their lead authority is
Holder v. Humanitarian Law Project, 

, 2707 (2010), but that
decision held that the law applied to conduct that triggered a message that
provided material support to the terrorists in the form of speech. 

Whereas the New Orleans law in its requirements for a license has no effect
whatsoever on the content of what tour guides say. Those who have the license
can speak as they please, and that would apply to almost any vocation that
may be licensed. Tour guides may talk but what they say is not regulated or
affected by New Orleans.
      The Supreme Court’s opinion in Ward v. Rock Against Racism, 

(1989) is instructive. There the government had regulated sound, and
the Court said that even with messages conveyed, the regulation is content-
neutral so long as the regulation is justified without reference to content or
speech. 

Because that regulation was content-neutral and only
reviewed with intermediate scrutiny, it satisfied the requirement of narrow
tailoring “so long as the…regulation promotes a substantial interest that
would be achieved less effectively absent the regulation.” 

(quoting
United States v. Albertini, 

, 2906 (1985)). New Orleans, by
requiring the licensees to know the city and not be felons or drug addicts, has
effectively promoted the government interests, and without those protections
for the city and its visitors, the government interest would be unserved.
      The judgment of the district court upholding the constitutionality of the
New Orleans licensing scheme for tour guides is affirmed.
      AFFIRMED.
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