Libertarian Lawyers, Tour Guides, and Straw Men

As I described yesterday, in April the Philadelphia government decided to launch a process for educating, testing, and licensing tour guides working in its historic center. On 2 July, the libertarian Institute for Justice sued on behalf of three guides to block that law. On the same day, an institute lawyer published an opinion piece in the upscale Philadelphia Inquirer, and one plaintiff, Mike Tait, published a similar piece in the tabloid Philadelphia Daily News.

That date was more than two months after the law was enacted, more than three before it was due to take effect. But it was—as the institute noted in its press release—“two days before Philadelphia celebrates the signing of the Declaration of Independence.” (Ironically, the 2nd of July is the actual anniversary of the Continental Congress’s vote for independence, but no one observes that.)

That timing maximized the coverage over the holiday weekend, when—who could have imagined?—many city officials were out of the office or busy at public events and therefore unavailable for comment. I’ve noted political advocates using this tactic before.

The Institute for Justice describes itself as “our nation’s only libertarian public interest law firm,” founded in 1991 and headquartered in Arlington, Virginia. Sourcewatch says the initial funding came from Koch Family Foundations which also support the Cato Institute. Given the space that the Institute for Justice’s website gives to the Philadelphia lawsuit, its people obviously think they have a public-relations winner.

The suit is based on the principle of free speech. It casts the Philadelphia law not as a matter of public education, or consumer protection, or minimal standards for people using public resources, but as a case of individual rights restrained by government. In essence, the plaintiffs argue that Philadelphia tour guides have a First Amendment right to spout whatever nonsense they want.

Of course, neither the institute nor its clients frame the case that way. Rather, Tait argued that the city might interfere with guides’ right to express valid but unpopular facts and opinions. He wrote, “What if officials don’t want us to discuss the fact that the Cradle of Liberty [hey, didn’t Rep. Joshua Cushman call Massachusetts the “Cradle of Liberty” in 1822?] had loyalists and and a favorite son [Benjamin Franklin] may have been involved in slavery?” And indeed that’s a problem with any government or majority attempt to control the discourse of history.

Tait’s employer, the Constitutional Walking Tour (originally modeled on Boston’s Freedom Trail), has issued a statement supporting the lawsuit. I’d be more impressed with that organization’s readiness to tackle such delicate subjects as Loyalism or slavery if its website contained the words “Loyalist” or “slave” or anything like them. And more impressed with Tait’s commitment to historical accuracy if he didn’t acknowledge leading the company’s “Spirit of ’76 Ghost Tours, where—besides historical facts—we wade through haunted folklore.” In other words, spouting nonsense for people’s entertainment.

Arguments about suppressing statements on slavery, Loyalism, or other potentially tender subjects are, at this point, purely hypothetical. The last big historical controversy in Philadelphia involved conservatives complaining that the new Liberty Bell Center was giving too much attention to people kept enslaved at George Washington’s Presidential mansion. (In a couple of cases, those people secured liberty for themselves by leaving.) Whenever I see folks offering “slippery slope” arguments from the start, I know that they don’t have any actual problems to highlight.

Meanwhile, the Constitutional Walking Tour company and one of Tait’s fellow plaintiffs from another firm are also allies in a dispute involving a big rival called Ride the Duck. As reported by Philadelphia Daily News columnist Ronnie Polaneczky on 25 March, Ride the Duck secured four loading spaces outside Independence Visitor Center by incorporating itself as four separate companies, one for each vehicle. (Ride the Duck has also inspired an opposition campaign simply by being noisy.)

I can’t help but see some attempts to have it both ways here. The tour guide plaintiffs want Philadelphia to be more strict about regulating tour parking spaces, but less strict about regulating tour guides. The Constitutional company objects to how a rival has incorporated itself and presented itself in different guises for different purposes. Yet the Constitutional has used incorporation to position itself as a non-profit educational resource, with outreach to schools and a student essay contest, but also uses the “Spirits of ’76” name to market spooky entertainment.

TOMORROW: A historian’s take on this tempest.