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Billups v. City of Charleston

United States District Court, D. South Carolina, Charleston Division

September 25, 2017




         This matter is before the court on plaintiffs Kimberly Billups, Michael Warfield and Michael Nolan's (collectively, “plaintiffs”) and defendant City of Charleston's (the “City”) cross-motions for summary judgment, as well as the City's motion to strike plaintiff's Statement of Undisputed Material Facts (“SUMF”). For the following reasons, the court denies both motions for summary judgment and grants in part and denies in part the motion to strike.[1]

         I. BACKGROUND

         This dispute arises out of a First Amendment challenge to the City's regulation of tour guides. The city of Charleston, South Carolina draws millions of visitors every year and has developed a reputation for being one of the top tourist destinations in the world. ECF No. 43-2, Riley Aff. ¶ 3. Given the size and significance of the local tourism industry, the City has long regulated the industry in a number of ways. Id. ¶¶ 4-5. Pursuant to Charleston City Code § 29-58, the City currently prohibits any person from “act[ing] or offer[ing] to act as a tour guide in the city for hire unless he or she has first passed a written examination and is licensed by the [City].” A “tour guide” is defined as a “person who acts or offers to act as a guide for hire through any part of” certain regulated areas of the city. Charleston City Code § 29-2. The City defines a “tour or touring” as “the conducting of or the participation in sightseeing . . . for hire or in combination with a request for donations.” Id.

         In April of 2016-following the filing of this lawsuit, the City amended the requirements for obtaining a tour guide license. As the regulations currently stand, the City requires prospective tour guides to pass the aforementioned written examination and obtain a valid business license before qualifying for a tour guide license. Id. The written examination is designed to “test the applicant's knowledge of the city and its history, ” Charleston City Code § 29-59(b), and consists of 200 questions drawn from information provided in the Charleston Tour Guide Training Manual (the “Manual”), a 490-page study guide detailing various historical, architectural, cultural, and other information. ECF No. 50-11, Manual Excerpts at 5, 6 (table of contents). The stated purpose of the Manual “is to provide a wealth of knowledge for prospective and current licensed tour guides” and to further “the city's goal [of] provid[ing] accurate, factual and updated information to its visitors and residents.” Id. at 482. A prospective tour guide must correctly answer 70 percent of the exam questions to pass.[2] Charleston City Code § 29-59(f). Once licensed, tour guides are required to attend four continuing education lectures every three years in order to extend the term of their license. Charleston City Code § 29-63. Otherwise, the license will lapse, and the tour guide will be required to retake the written examination.[3] Id.

         Prior to the recent amendments, the City also required prospective tour guides to pass an oral examination, wherein candidates would “act as a guide” in front of City officials and who would evaluate the candidates' performance on a “pass or fail basis.” ECF No. 39-2, Maybank Dep. 107:10-13; see also Ordinance § 3 (striking provisions requiring oral examination). The oral exam tested both the accuracy and completeness of a prospective tour guide's performance, meaning that a prospective tour guide might fail the oral exam due to their failure to mention certain facts relevant to the tested area. ECF No. 48-10, Mendelsohn Dep. 47:3-47:25. The pre-amendment Code also allowed individuals to act as “temporary tour guides” under certain conditions. Charleston City Code § 29-60 (2016). “Temporary tour guides” were not required to pass the written examination described above, but were required to adhere to a script approved by the City. Id. § 29-60(e), (g). The City required the information contained in the approved scripts to be consistent with the Manual. ECF No. 49-6, Tourism Commission Meeting Minutes 10/22/97 at 2.

         Plaintiffs are individuals who wish to work as tour guides in Charleston, but failed to meet the 80 percent threshold required to pass the written licensing exam when they each took it in 2015. Compl. ¶¶ 38, 52-55, 68. Plaintiffs Kimberly Billups and Michael Warfield each scored over the current 70 percent threshold in November 2015 and August 2015, respectively. Id. ¶¶ 38, 53. Pursuant to the retroactive application of the new 70 percent threshold, Billups and Warfield are now working as licensed tour guides, although they remain subject to the City's continuing education requirements. Charleston City Code § 29-63. Plaintiff Michael Nolan still has not passed the written examination and remains ineligible for a tour guide license.

         On January 28, 2016, plaintiffs filed a complaint alleging that the City's tour guide license requirement violates the First Amendment of the United States Constitution. Compl. ¶¶ 103-06. Plaintiffs moved for a preliminary injunction and the City moved to dismiss the complaint. The court denied both motions on July 1, 2016 (the “2016 Order”). ECF No. 27. On January 27, 2017, the parties each filed motions for summary judgment. ECF Nos. 39, 40. On February 1, 2017, the City filed its motion to strike plaintiffs' SUMF. ECF No. 52. Plaintiffs filed a response to the motion to strike on February 3, 2017, ECF No. 53, and the City filed a reply on February 9, 2017. ECF No. 56. The parties then filed responses in opposition to the summary judgment motions on February 24, 2017. ECF Nos. 61, 62. The parties filed their replies on March 17, 2017. ECF Nos. 65, 66. The court held a hearing on April 6, 2017. On April 21, 2017, the City filed a sur-reply to address the arguments contained in plaintiffs' SUMF. ECF No. 72. The matter is now ripe for the court's review.

         II. STANDARD

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Rule 56(c) of the Federal Rules of Civil Procedure requires that the district court enter judgment against a party who, ‘after adequate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Any reasonable inferences are to be drawn in favor of the nonmoving party. See Webster v. U.S. Dep't of Agric., 685 F.3d 411, 421 (4th Cir. 2012). However, to defeat summary judgment, the nonmoving party must identify an error of law or a genuine issue of disputed material fact. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); see also Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003).

         Although the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence. See Anderson, 477 U.S. at 252; Stone, 105 F.3d at 191. Rather, “a party opposing a properly supported motion for summary judgment . . . must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat, 346 F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)). If the adverse party fails to provide evidence establishing that the factfinder could reasonably decide in his favor, then summary judgment shall be entered “regardless of ‘[a]ny proof or evidentiary requirements imposed by the substantive law.'” Id. (quoting Anderson, 477 U.S. at 248).

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-movant must then “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322.


         The flashpoints of this litigation at the summary judgment stage are much the same as they were at the preliminary injunction stage. Plaintiffs argue that the City's licensing law should be subject to strict scrutiny because it is a content-based regulation of speech, while the City contends that the law is content-neutral, and therefore, subject to only intermediate scrutiny.[4] Plaintiffs further argue that, even if the law is deemed to be content-neutral, it fails under intermediate scrutiny. The City, of course, disagrees.

         Thus, the court must revisit many of the same issues addressed in its 2016 July 1, 2016 order denying plaintiffs' motion for a preliminary injunction (the “2016 Order”).[5] While the parties have provided fairly lengthy briefs and an extensive array of exhibits to support their arguments, the court finds that neither of the major issues-the appropriate level of scrutiny and whether the City's licensing scheme passes that level of scrutiny-can be resolved at the summary judgment stage.

         A. Appropriate Level of Scrutiny

         “The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.'” Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2226 (2015) (quoting U.S. Const., Amdt. 1). The animating purpose behind the First Amendment “lies [in] the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994). Thus, “a government, including a municipal government vested with state authority, ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'” Reed, 135 S.Ct. at 2226 (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id. “In contrast, [laws] that are unrelated to the content of speech are subject to an intermediate level of scrutiny, [] because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Turner Broad. Sys., 512 U.S. at 642 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). A law may be content-based in two ways: it may be content-based “on its face, ” or it may rely on a content-based “purpose and justification.” Reed, 135 S.Ct. at 2228.

         Plaintiffs argue that the licensing statute is both facially content-based, and dependent on a content-based justification. Pls.' Mot. 22-32.

         1.Content-Based on its Face

         Plaintiffs argue that the licensing law is content-based on its face because it is triggered by speech communicating a particular message. Id. at 17. “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S.Ct. at 2227. Whether a regulation is content-based “on its face” must be judged by the “plain terms of the regulation.” Satellite Broad. And Commc'ns Ass'n v. F.C.C., 275 F.3d 337, 353-54 (4th Cir. 2001) (quoting Chesapeake and Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 193 (4th Cir.1994), vacated on other grounds, 516 U.S. 415 (1996)). The Supreme Court has explained that while “[s]ome facial distinctions based on a message are obvious, . . . others are more subtle, [such as] defining regulated speech by its function or purpose.” Reed, 135 S.Ct. at 2227. Examples of functional or purpose-based categories of speech include “marketing” speech, see Sorrell, 131 S.Ct. at 2663 (“The statute thus disfavors marketing, that is, speech with a particular content.”), speech “directing the public to church, ” Reed, 135 S.Ct. at 2227, and speech “designed to influence the outcome of an election.” Id.

         At the preliminary injunction stage, the court analyzed the plain language of the licensing law and determined that it was not content-based on its face. 2016 Order at 14-16. As the court explained:

[I]t is very difficult to functionally define the speech required to perform “tour guide services” or “act[ ] as a guide” without circularly referring to speech made in the course of such conduct. . . . The most that can be said is that acting as a tour guide requires one to speak with the function or purpose of acting as a tour guide. Whatever the Court intended when it held that a law may be content-based if it facially distinguishes between categories of speech defined by their “function or purpose, ” Reed, 135 S.Ct. at 2227, it cannot have meant that every law restricting conduct also imposes a content-based restriction on speech made in the course of such ...

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