Unenforced, yes, but city argues licenses are legal

The latest battle between City Hall and Philadelphia’s tour guides played out before a Court of Appeals panel at the federal courthouse overlooking Independence Mall yesterday morning. At issue was an existing, but unenforced, city law that makes it illegal for someone to lead tours without passing a test and getting licensed by the city, risking a $300 fine per offense.

Robert McNamara, an attorney with the nonprofit libertarian law firm representing three local guides, said even though budgetary constraints haven’t allowed the city to even devise a tour-guide test yet, courts should deem the law unconstitutional.

The city counters that constitutionality is a moot point because the law isn’t yet being enforced. “It’s not happening. That’s practical reality,” Deputy City Solicitor Elise M. Bruhl said.

McNamara argued that the city said it would eventually enforce these laws, so whether it’s a free-speech violation remains pertinent.

“There is a law on the books in Philadelphia that says it’s illegal to make a living talking about the Liberty Bell. Government can’t control what private citizens are talking to private citizens about,” McNamara said.

Should the panel agree with McNamara, the case will be remanded to District Court — where a judge dismissed the case because no enforcement meant no immediate threat to tour guides.