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Like the rest of the world, we are horrified by the videos of George Floyds murder. Once again, police brutality was documented by brave bystanders exercising their First Amendment rights. Their videos forcefully tell a painful truth that has further fueled a movement to demand an end to racism and abuse of power by police officers.

Recordings of police officers, whether by witnesses to an incident with officers, individuals who are themselves interacting with officers, or by members of the press, are an invaluable tool in the fight for police accountability. Often, its the video alone that leads to disciplinary action, firing, or prosecution of an officer.

This blog post provides some practical tips to record the police legally and safely, and explains some of the legal nuances of recording the police.

You have a First Amendment right to record the police. Federal courts and the Justice Department have recognized the right of individuals to record the police. Although the Supreme Court has not squarely ruled on the issue, there is a long line of First Amendment case law from the high court that supports the right to record the police. And federal appellate courts in the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right. EFF has advocated for this right in many amicus briefs.

Federal appellate courts typically frame the right to record the police as the right to record officers exercising their official duties in public. Thus, if the police officer is off-duty or is in a private space that you dont also have a right to be in, your right to record the officer may be limited.

The right to record the police unequivocally includes the right to take pictures and record video. There is an added legal wrinkle when recording audiowhether with or without video. Some police officers have argued that recording audio without their consent violates wiretap laws. Courts have generally rejected this argument. The Seventh Circuit, for example, held that the Illinois wiretap statute violated the First Amendment as applied to audio recording on-duty police officers.

There are two kinds of wiretaps laws: those that require all parties to a conversation to consent to audio recording (12 states), and those that only require one party to consent (38 states, the District of Columbia, and the federal statute). Thus, if youre in a one-party consent state, and youre involved in an incident with the police (that is, youre a party to the conversation) and you want to record audio of that interaction, you are the one party consenting to the recording and you dont also need the officers consent. If youre in an all-party consent state, and your cell phone or recording device is in plain view, your open audio recording puts the officer on notice and thus their consent might be implied.

Additionally, wiretap laws in both all-party consent states and one-party consent states typically only prohibit audio recording of private conversationsthat is, when the parties to the conversation have a reasonable expectation of privacy. Police officers exercising their official duties in public do not have any reasonable expectation of privacy. Neither do civilians in public places who speak to police officers in a manner audible to passersby. Thus, if youre a bystander and want to audio record an officers interaction with another person in a public space, regardless of whether youre in a state with an all-party or one-party consent wiretap statute, you may audio record the encounter.

Finally, the Massachusetts wiretap statute is unique in that it prohibits the secret audio recording of conversations without regard to whether those conversations are private absent all-party consent. There is a case pending in the First Circuit that is challenging under the First Amendment the Massachusetts wiretap statute to the extent it prohibits secretly audio recording police officers when they are engaged in non-private activitiesthat is, performing their official duties in public. The plain view rule also applies in this state because, as the First Circuit has held, open recording is not surreptitious.

The ability to secretly record the police (whether with photos, video or audio) is critically important given that officers often retaliate against individuals who openly record them. A good example of this is a case thats currently pending in the Tenth Circuit, in which a bystander used his tablet to record Denver police officers punching a suspect in the face as his head repeatedly bounced off the pavement, and tripping his pregnant girlfriend. The officers retaliated against the recorder by seizing his tablet without a warrant and deleting the video (which he was later able to retrieve).

While the weight of legal authority provides that individuals have a First Amendment right to record the police, courts have also stated one important caveat: you may not interfere with officers doing their jobs.

The Seventh Circuit, for example, said, Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety. The court further stated, While an officer surely cannot issue a move on order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.

* * *

Independent recordings of police officers are critical for ensuring police accountability. We urge individuals to keep recording. We hope this blog post helps you to do so legally and safely.

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You Have a First Amendment Right to Record the Police - EFF

By WIN GRUENING

Americans were horrified by the senseless killing of George Floyd, an unarmed black man, by a white Minneapolis police officer.

Subsequently, Americans were horrified by the indiscriminate looting and vandalism that accompanied the demonstrations in scores of cities across our nation.

Sadly, the destruction, as well as the violence directed at police forces attempting to maintain order and protect lives and property, were dismissed by many in the media as an unfortunate by-product of frustration and anger of protesters.

To be fair, many peaceful demonstrators, black and white, decried the violence and attempted to prevent more destruction.

There were reports that organized extremists instigated looting and participated in burning down stores, churches, and even a police station.

Unable to distinguish between legitimate protesters and criminal vandals and looters, police were put in an impossible situation, and, in some cases, ordered to stand down while lawlessness prevailed, and cities burned.

In our country, peaceful protest is protected. All citizens have a right to be heard.But the message of the protesters was undermined by the violence and mayhem that occurred.

The medias treatment of Black Lives Matter (BLM) protests, often describing them as mostly peaceful, while labeling nearby rioting mobs as uprisings, was clearly at odds with what America witnessed on their television screens.

Even more stark was the medias selective reversal on Covid-19 mandates.Aided by politicians and talking-heads, organized BLM protests were enthusiastically endorsed throughout the media.In contrast, earlier public positions and protests by business-owners, churches, and organizations advocating for opening up the nations devastated economy were roundly condemned.

Both groups were exercising their 1stAmendment right to protest unwarranted or unlawful government authority. Yet, the reaction to them by the public, local authorities and the media was often diametrically opposed.

Black Lives Matter protests were treated quite differently.

As protests continued, along with public memorial services for George Floyd, it became abundantly clear that Covid-19 mandates werent meant to be applied to everyone just those not demonstrating for an acceptable cause.Governors and mayors across the country encouraged and joined the BLM protests all the while insisting that other large gatherings remain strictly forbidden for health reasons.

Just weeks before, Alaska shop owners objecting to health mandates were widely criticized for putting the lives of their fellow citizens at risk in the pursuit of profits.

Anchorage Mayor Ethan Berkowitz, who joined peaceful protests, also thought lives were at risk, but not in the way you might think.During a recent community radio address, he elevated Black Lives Matter protesters to hero status by saying I see people who are risking their lives to protestin spite of a pandemic.

That comment diminishes the sacrifice of thousands of real heroes in our countrys history who risked and lost their lives defending the constitutional right of all Americans to protest.

The coronavirus doesnt distinguish between conservative and liberal protests. According to some, apparently our 1st Amendment rights do.

The complex and deep-seated issues facing our country wont be solved by quelling debate and limiting personal freedoms of those expressing opinions with which we disagree.

Win Gruening retired as the senior vice president in charge of business banking for Key Bank in 2012. He was born and raised in Juneau and graduated from the U.S. Air Force Academy in 1970. He is active in community affairs as a 30-plus year member of Juneau Downtown Rotary Club and has been involved in various local and statewide organizations.

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First Amendment rights? Only for the Left - Must Read Alaska

From yesterday's decision in Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, written by Judge Jay Bybee and joined by Judges N. Randy Smith and Michael Melloy (8th Cir.). (I had filed an amicus brief in support of the School on behalf of Profs. Jane Bambauer, David Bernstein, Clay Calvert, and Mark Lemley, Dean Rodney Smolla, and myself; many thanks to UCLA School of Law students Tyler Hastings, Nicole Karatzas, and Brigid Mahoney, who worked on the brief):

Plaintiff Bob Smith is an experienced farrier and offers classes for those who would like to learn the art and craft of horseshoeing. Plaintiff Esteban Narez is experienced with horses and would like to enroll in Smith's classes to become a professional farrier. But because Narez does not have a high school diploma or GED, California's Private Postsecondary Education Act of 2009 prohibits him from enrolling in Smith's courses unless Narez first passes an examination prescribed by the U.S. Department of Education. {[Narez alleges that, b]ecause he works seven days a week, [he] does not want to forgo income to study for a test that has no relevance to horseshoeing.}

[I]f Smith were running a flight school or teaching golf, dancing, or contract bridge, Narez could enroll without restriction. We conclude that plaintiffs have stated a claim that the PPEA burdens their rights under the First Amendment. We therefore reverse and remand to the district court for further proceedings.

The court concluded that the Act was a speech restriction:

In our view, California "is wrong that the only thing actually at issue in this litigation is conduct." Holder v. Humanitarian Law Project (2010). Although the PPEA is a form of education licensing by the state, the First Amendment deprives the states of "unfettered power to reduce a group's First Amendment rights by simply imposing a licensing requirement." Nat'l Inst. of Family & Life Advocates v. Becerra (2019).

California points out that the Act regulates enrollment agreements. We agree, but when the Act is viewed in its entirety, it becomes clear that it controls more than contractual relations. It also regulates what kind of educational programs different institutions can offer to different students. Such a regulation squarely implicates the First Amendment. See Humanitarian Law Project (noting that a law which "may be described as directed at conduct" nevertheless implicates speech where "the conduct triggering coverage under the statute consists of communicating a message").

There can be little question that vocational training is speech protected by the First Amendment. Smith's "speech to [students] imparts a 'specific skill' or communicates advice derived from 'specialized knowledge.'" Humanitarian Law Project. "Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs." Sorrell v. IMS Health Inc. (2011). And, important to this case, "[a]n individual's right to speak is implicated when information he or she possesses is subjected to 'restraints on the way in which the information might be used' or disseminated." Id.

Furthermore, "the Constitution protects [Narez's] right to receive information and ideas." We have explained that when there is "a speaker who is willing to convey information," state "restriction[s] of the right to receive information" produce "actual injury" under the First Amendment. This right to receive information naturally extends to educational settings. Thus, the PPEA implicates the First Amendment by restricting the rights of both speakers (Smith) and would-be listeners (Narez).

The court recognized that the government is free to regulate businesses, including ones that provide education, in various ways (e.g., by imposing generally applicable tax laws or zoning laws). But heightened First Amendment scrutiny is required when, as in this case, such a regulation "differentiates between speech or speakers":

California's PPEA is riddled with exceptions to the ability-to-benefit rule, and the exceptions turn on one of two things: (1) the content of what is being taught, or (2) the identity of the speaker. Together these exceptions demonstrate that the Act does more than merely impose an incidental burden on speech: it "target[s] speech based on its communicative content."

An ability-to-benefit student (one not holding a high school diploma or a GED) may not enroll in a for-profit postsecondary educational institution without meeting the ability-to-benefit requirement. But the Act contains a number of exemptions that turn on the nature of what is being taught. If, for example, the course is "solely avocational or recreational," then the course is not covered by the ability-to-benefit requirement. If, however, the course's content is not "solely avocational or recreational," the restriction is triggered and covered institutions cannot enroll certain students.

The fact that the Act distinguishes between, say, golf lessons because they are "solely avocational or recreational," and horseshoeing lessons because they are not, is significanteven if we assume that the state has no particular interest in encouraging speech related to golf lessons or suppressing speech related to horseshoeing. See Reed v. Town of Gilbert (2015) ("[A] speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter."). Communication of factual information about horseshoeing surely qualifies as protected free speech the same as communication about golf. See Sorrell (explaining that conveying factual information constitutes "the creation and dissemination of information are speech within the meaning of the First Amendment"). The Act excepts other courses as well. See, e.g., Cal. Educ. Code 94874(d)(1) (exempting test preparation courses for standard examinations), (d)(2) (exempting test preparation courses for continuing education or license examinations), (j) (exempting flight instruction courses).

Second, the PPEA distinguishes between speakers. For example, the Act exempts "educational programs sponsored by a bona fide trade, business, professional, or fraternal organization, solely for that organization's membership." There is a similar exemption for "a bona fide organization, association, or council that offers preapprenticeship training programs" approved by the California Workforce Development Board. Id. 94874(b)(2)(A). There are exemptions for "[a] state-recognized professional licensing body that licenses persons in a particular profession, occupation, trade, or career field" or "[a] bona fide trade, business, or professional organization"; for nonprofit religious organizations {[an] exemption [that] comes with its own content-based restriction[,] "The instruction is limited to the principles of that religious organization ."}; for "[a]n institution that does not award degrees and that solely provides educational programs for total charges of [$2500 or less]"; for a "nonprofit public benefit corporation"; and for certain nonprofit "community-based organization[s]." id. 94874(k)(1).

The PPEA thus favors particular kinds of speech and particular speakers through an extensive set of exemptions. See Sorrell ("[The state's] law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers."); U.S. v. Playboy Entm't Grp., Inc. (2000) ("Not only does [the statute] single out particular programming content for regulation, it also singles out particular programmers."). That means the PPEA necessarily disfavors all other speech and speakers. See Sorrell.

Sorrell is instructive in understanding these principles. There, the Supreme Court struck down a Vermont law that prohibited pharmacies from selling doctors' prescribing records to pharmaceutical companies, which the companies could then use to market prescription drugs to specific doctors. The statute, however, exempted entities that did not use the information for marketing purposes. And if the information somehow ended up in the hands of a pharmaceutical company, the statute proscribed that company's use of the information to market drugs to doctors absent certain circumstances. Pharmaceutical and data-mining companies challenged the law, claiming a violation of their First Amendment right to disseminate information.

Sorrell controls this case. The PPEA's operative impact is similar to that of the Vermont statute held unconstitutional in Sorrell. In both schemes, the speaker is the one being forbidden to act: private, for-profit postsecondary institutions here and pharmaceutical companies in Sorrell. And in each case, a violation occurs because of who the listener is and the message the speaker seeks to convey. In Sorrell, the listener was the doctor and the forbidden topic was the marketing of prescription drugs. Here, the listener is a student without a high-school education and the topic is vocational education. Thus, the PPEA's overall statutory scheme precludes certain would-be students from taking a course when the institution would otherwise admit such students "because of the topic discussed."

In sum, we agree with the plaintiffs that the PPEA "requires authorities to examine the contents of the message to see if a violation has occurred." Tschida v. Motl (9th Cir. 2019). We thus agree that the statutory scheme here not only implicates speech, but also engages in content discrimination. Moreover, because content discrimination is apparent, the district court should have applied some form of heightened scrutiny.

The court then remanded so the district court can resolve whether the law should be viewed as a restriction of "commercial speech" (which is subject to broad protection but not full protection) or as a restriction of fully protected speech:

The parties did not brief the question of whether the PPEA regulates commercial speech and, if so, what level of heightened scrutiny should apply here. We will leave it to the district court on remand to determine whether this case involves commercial or non-commercial speech, whether California must satisfy strict or intermediate scrutiny, and whether it can carry its burden under either standard. Cf. NILFA (declining to decide what heightened standard of review applies because the law "cannot survive even intermediate scrutiny"); Sorrell ("[T]he outcome [in this case] is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied."). We simply hold that, because California's PPEA regulates the content of speech, plaintiffs have stated a First Amendment claim.

I think the school's educational programs are fully protected speech, not "commercial speech," even though they are sold like money (as are books, newspapers, and the like). See, e.g., Joseph Burstyn, Inc. v. Wilson (1952) ("It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment."). I expect the district court to so conclude on remand, or perhaps conclude that the law is unconstitutional regardless of whether the speech is treated as commercial.

Link:
"Vocational Training Is Speech Protected by the First Amendment" - Reason

So the Fourth Circuit held Thursday, in Billups v. City of Charleston, in an opinion by Judge Robert King, joined by Judges J. Harvie Wilkinson and Paul Niemeyer. Congratulations to Arif Panju of the Institute for Justicea superb libertarian public interest law firmon the victory, and belated congratulations to his IJ colleagues Paul Avelar and Keith Diggs on the victory the day before in the Ninth Circuit Pacific Coast Horseshoeing case. (Disclosure: My student Kelly Kambourelis and I had filed an amicus brief supporting this outcome, on behalf of the Cato Institute.)

[Under] Charleston's Tour Guide Licensing Ordinance[,] before leading a paid tour through Charleston's historic districts, a prospective guide must obtain a license. And to obtain that license, a prospective guide must pass a 200-question written examination that focuses on Charleston's history, architecture, and historic preservation efforts. "Tour Guide" is defined as "any person who acts or offers to act as a guide for hire through any part of the districts, including but not limited to pedestrians and persons within automobiles, motor vehicles or horse-drawn vehicles when the primary purpose of riding in such vehicles is not transportation, but touring the historic areas of the city." "Tour" and "Touring" are defined as "the conducting of or the participation in sightseeing in the districts for hire or in combination with a request for donations" . "Districts" are defined as "the old and historic district and the old city district."

{The Ordinance's examination requirement is unusual in that most other cities with tourism-based economies do not require that tour guides pass an exam to obtain a tour guide license. For example, Paula Reynolds, a tour guide organizer who has worked in over fifty jurisdictions around the United States, testified in the district court that only two other jurisdictionsNew Orleans, Louisiana, and Williamsburg, Virginiarequire that tour guides pass exams to obtain licenses. And after Reynolds offered that evidence, Williamsburg amended its tour guide licensing ordinance to remove the mandatory exam provision.}

On appeal, the City contends that the district court committed two errors in declaring the Ordinance unconstitutional. First, the City maintains that the court wrongly concluded that the Ordinance burdens protected speech and is thus subject to First Amendment scrutiny. Second, the City asserts that even if the Ordinance is subject to First Amendment scrutiny, the court erred in determining that it does not survive intermediate scrutiny. As explained below, we reject both of the City's contentions.

The court concluded that the Ordinance is a speech restriction:

The Ordinance undoubtedly burdens protected speech, as it prohibits unlicensed tour guides from leading paid toursin other words, speaking to visitorson certain public sidewalks and streets. See Sorrell v. IMS Health Inc. (2011) ("An individual's right to speak is implicated when information he or she possesses is subjected to restraints on the way in which the information might be used or disseminated.").

{[T]he business of leading tours depends on the expression of ideas. And the Ordinance forbids unlicensed tour guides for hire from expressing those ideas on public thoroughfares. Such a restriction burdens protected speech and thus implicates the First Amendment. Cf. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton (2002) (explaining that "requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech" and effectively bans a "significant amount of spontaneous speech").}

The City, however, resists this rather straightforward conclusion for three reasons. First, the City asserts that the Ordinance cannot constitute a burden on protected speech because tour guides who do not charge for their services can give tours without a license. But the City's profit-based distinction is quite beside the point, as speech is "protected even [when] it is carried in a form that is 'sold' for profit." "While the burdened speech results from an economic motive, so too does a great deal of vital expression." See also Adventure Commc'ns, Inc. v. Ky. Registry of Election Fin. (4th Cir. 1999) (explaining that "profit motive on the speaker's part does not transform" protected noncommercial speech into less-protected commercial speech).

Second, the City maintains that the Ordinance is exempt from First Amendment scrutiny because it merely regulates the commercial transaction of selling tour guide servicesnot the speech of the tour guides. But it is well-established that a law aimed at regulating businesses can be subject to First Amendment scrutiny even though it does not directly regulate speech. See Holder v. Humanitarian Law Project (2010) ("The law here may be described as directed at conduct but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.").

To be sure, restrictions on "protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct." And "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech."

The Ordinance, however, cannot be classified as a restriction on economic activity that incidentally burdens speech. Rather, it completely prohibits unlicensed tour guides from leading visitors on paid toursan activity which, by its very nature, depends upon speech or expressive conduct. Although we acknowledge that the City enacted the Ordinance to protect Charleston's economic well-being and safeguard its tourism industry, that alone does not shield the Ordinance from First Amendment scrutiny.

Finally, the City relies on a rhetorical question in a decision from the Fifth Circuit to argue that the Ordinance does not burden protected speech. In that decision, which evaluated the constitutionality of New Orleans's mandatory licensing scheme for tour guides, the Fifth Circuit remarked: "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?" Immediately following that musing, however, the court proceeded to subject the New Orleans ordinance to First Amendment scrutiny. The Kagan decision thus does not support the City on the protected speech issue.

And the court then concluded that it didn't need to reach the question whether (as our amicus brief had argued) the restriction was content-based, because it would be unconstitutional even if treated as content-neutral and thus subject to "intermediate scrutiny," under which a restriction must be "narrowly tailored to serve a significant governmental interest, and [must] leave open ample alternative channels for communication of the information."

The City bears the burden of proving that the Ordinance survives intermediate scrutiny.

[W]e are satisfied that the City has a significant interest in protecting Charleston's tourism industry and visitors from harms perpetrated by unknowledgeable or fraudulent tour guides. We also readily conclude that the Ordinance servesat least to some extentthe City's interest in protecting Charleston's tourism industry.

Our inquiry, however, does not end there, as the constitutionality of a law that restricts protected speech does not turn solely on the significance of the governmental interest involved. Rather, to zealously safeguard the right to free speech enshrined in our Constitution's First Amendmentundoubtedly among the most fundamental of American rightswe must also ensure that the government's chosen method for protecting its significant interests is not too broad.

In assessing whether the Ordinance is narrowly tailored to serve the City's interest in protecting Charleston's tourism industry, we consider whether the Ordinance "burden[s] substantially more speech than is necessary to further the government's legitimate interests." Of course, the Ordinance need not be "the least restrictive or least intrusive means of" serving the City's interests, but the City may not "regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals."

To prove that a content-neutral restriction on protected speech is narrowly tailored to serve a significant governmental interest, the government must, [among other things], present evidence showing thatbefore enacting the speech-restricting lawit "seriously undertook to address the problem with less intrusive tools readily available to it." In other words, the government is obliged to demonstrate that it actually tried or considered less-speech-restrictive alternatives and that such alternatives were inadequate to serve the government's interest. The government's burden in this regard is satisfied only when it presents "actual evidence supporting its assertion[s]."

And the court (among other things) pointed to this alternative:

[T]he Plaintiffs propose [an] alternativea voluntary tour guide certification program similar to those successfully used by other great American cities, including historic municipalities like Baltimore and Chicago. The Plaintiffs contend that the City should have seriously considered, before enacting the Ordinance, whether a voluntary certification program could be used in Charleston to regulate tour guides.

As the Plaintiffs emphasize on appeal, such a voluntary program provides tour guides with opportunities to "obtain a competitive advantage (and government recommendation) by passing a test and obtaining a credential." And unlike the City's existing deceptive solicitation and business licensing ordinances, a voluntary certification program speaks directly to the City's interest in ensuring that tour guides have a base level of knowledge and competency. Under the voluntary certification program supported by the Plaintiffs, prospective tour guides who meet the certification requirements could advertise their tours as certifiedfor example, by wearing special insigniaand the City could compile a list of certified guides for distribution to visitors. In other words, such a voluntary certification program would protect the City's tourism industry by encouraging visitors to patronize certified tour guides who satisfy standards established by the Cityall without infringing the Plaintiffs' free speech rights.

The City, on the other hand, has given short shrift to the idea of a voluntary tour guide certification program. Specifically, the City has failed to offer evidence demonstrating that it seriously considered a voluntary certification program before enacting the Ordinancesuch as, evidence that it conducted cost-benefit analyses, sanctioned formal reports, held workshops with city leaders, or spoke with leaders of other cities that have successfully implemented such a program. Rather, the City relies on the testimony of [Daniel Riccio, the City's Director of Livability] that a voluntary certification program "would be impractical," and the testimony of [former Mayor Joseph Riley] that such a program would not have "the accuracy or the excellence or the quality" of the Ordinance's mandatory certification program. That testimony, however, is simply not sufficient to satisfy the City's burden, as it is merely post-hoc justification for why City officials believe a voluntary tour guide certification program would not adequately protect its interests. Without unnecessarily specifying the precise process a governmental entity should employ in considering less-speech-restrictive alternatives used by other jurisdictions, we confidently say that outright rejection on impracticality groundsabsent any serious consideration whatsoeverdoes not suffice.

At bottom, because the City failed to provide evidence thatbefore enacting the Ordinanceit attempted to use "less intrusive tools readily available to it" (the existing deceptive solicitation and business licensing ordinances) or that it ever seriously "considered different methods that other jurisdictions have found effective" (a voluntary tour guide certification program), we are satisfied that the City has not established that the Ordinance is narrowly tailored. We therefore conclude that the district court correctly declared the Ordinance unconstitutional, as it cannot survive intermediate scrutiny.

The same issue had been decided the same way as to D.C. in Edwards v. D.C. (D.C. Cir. 2014), but the opposite way as to New Orleans in Kagan v. City of New Orleans (5th Cir. 2014); though there is therefore a square split among the circuits both as to the result and the reasoning, the Supreme Court declined to review Kagan, and I expect it would likely decline to review Billups as well, even if Charleston petitions for certiorari.

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Requirement of Licensing and Test for Tour Guides Violates the First Amendment - Reason

Snap CEO Evan Spiegel told CNBC on Thursday that it's within the company's rights to restrict the accounts it promotes on Snapchat.

"We've always said Discover is a closed platform, and we choose the types of content we want to promote on our platform. We're well within our First Amendment rights to decide what shows up on there," Spiegel told CNBC's "Power Lunch."

Snap announced last week it will no longer promote President Donald Trump's content within Snapchat's Discover feature. It took the step after Trump on social media addressed riots in the aftermath of the death of George Floyd, saying, "when the looting starts, the shooting starts." Snap's decision quickly drew backlash from the Trump campaign.

Trump's account remains public, however, and users who want to follow him can still do so and will still see his posts. The decision to stop promoting the president was "relatively easy" and "straightforward," Spiegel said.

"There seems to be some confusion about the First Amendment and who that applies to," Spiegel said. "The First Amendment is very specific. It's actually designed to protect individuals and private businesses from the government."

Spiegel pointed to NASCAR as another example. It announced Wednesday that it would ban the display of the Confederate flag at all of its events and properties.

"I think Snap really, we embrace those rights, we're grateful to have a First Amendment in our country, but we want to use our rights to stand up for the things we believe in," he said.

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Snap's decision to restrict Trump is within its First Amendment rights, CEO says - CNBC