Licensing and Professional Speech: From the Cases of Tour Guides

It seems popular to attack the license system using the First Amendment. In the District of Columbia and Charleston, the tour guide license system has been found to violate the First Amendment. The purpose of using the First Amendment to attack the license system is to upset the rationality review framework used in the constitutional review of occupational regulations. In other words, it is an attempt to reconstruct the examination criteria applicable to economic regulation into the framework of the First Amendment. Sorrell v. IMS Health Inc. 564 U.S. 552 (2011) is providing momentum to this attempt. While the Vermont law strictly restricted pharmacies from selling records showing trends in doctors' prescriptions and banned the disclosure of such records by drug marketing companies completely, it allowed others to sell similar information. Sorrell declared this Vermont law unconstitutional. Some commentators are wary of this ruling. They consider it a move to apply strict examinations, regarding the regulation of speech on companies as a content regulation. These commentators worry that cases such as the District of Columbia, New Orleans, and Charleston may extend the First Amendment approach to economic regulation because these cases are disputing the tour guide license system as a violation of the First Amendment. As seen in this paper, no strict examination criteria were imposed on the tour guide license system. However, the intermediate examination standards, which have negligible differences from strict examination standards, are applied. Nevertheless, there are still situations that should be watched. Will the First Amendment approach to the tour guide license system succeed? This paper examines the relationship between the license system and the First Amendment from the perspective of professional speech.本研究はJSPS 科研費 JP19K01299 の助成を受けたものです