For years the NPPA has been advocating for the federal government to curtail onerous and costly permit requirements in the vast expanses and historical treasures that make up federal lands including those controlled by the National Park Service. This week, as a part of our partnership with the First Look Media Works’ Press Freedom Defense Fund we filed an amicus brief joined by nine other media and free speech organizations in a case that challenges the constitutionality of that permitting scheme.
The case stems from an incident in late 2018 when national park police criminally cited an independent filmmaker, Gordon Price. Price had filmed a portion of his independent feature film entitled Crawford Road, which involved a desolate stretch of road in York County, Virginia, long the subject of rumors of hauntings and unsolved murders. A portion of the filming for the feature took place on the Yorktown Battlefield in Colonial National Historical Park. After Crawford Road premiered, park police visited Price and issued him a criminal citation for failing to obtain a permit. While Price was originally going to plead guilty, the judge declined his plea and urged him to obtain counsel to advise him on the First Amendment concerns related to the citation. Price and his attorney, Robert Corn-Revere moved to dismiss the criminal action on grounds that the implementing statute and regulation are facially unconstitutional and that issuance of the violation notice, and the attempt to enforce it, violated the First Amendment. Rather than oppose Price’s motion to dismiss, the government, represented by the United States Attorney’s Office within DOJ, filed its own motion to dismiss. Price responded to the government’s request to dismiss the violation notice by asking the court to make findings and recommendations that the violation notice constituted a violation of his First Amendment rights, and that the law related to “commercial filming” be declared unconstitutional as a content-based prior restraint of freedom of speech and of the press.
That permitting scheme takes a financial cut from several different kinds of photography and videography projects that it deems “commercial,” including documentary films. The “fee” which can be as high as $750, is in addition to any administrative costs related to accommodating the needs of a photographer or filmmaker. Obtaining costly insurance is also part of the permit requirements. The government defines “commercial” broadly, as being “for a market audience with the intent of generating income.” Although “representatives of the news media” are exempted in the statute, the question of who qualifies as a representative of the news media is not well defined, and in an era where more and more journalists are independent, NPPA believes the definition is a threat to freelance visual journalists as well.
In its brief, NPPA argues that the national parks has long been open for photographic First Amendment activity, making them public forums with respect to photography. The general public is broadly invited-and in fact encouraged-to take pictures in national parks and photography is inextricably intertwined with the creation of many of the parks themselves. NPPA also argues that the permit fee requirement is an unconstitutional prior restraint on speech because while the general public is free to engage in expressive activity in the publicly accessible areas of national parks, some speakers are subject to an arbitrary permitting scheme in order to perform the very same expressive activity. This is a speaker-based prior restraint and is presumptively unconstitutional.
In 2007, NPPA testified before Congress with respect to the then new permitting laws. We warned against enacting arbitrary laws aimed at the photography itself and urged Congress to focus its regulations on activities that would impact the park, including damage to resources or interference with public visitors. This type of impact has no genuine relationship to whether photograph or film earns a profit for the photographer. NPPA re-emphasized its position in the amicus brief, noting that the current government scheme of applying criminal penalties after a film is released, or requiring a costly permit in advance of a photographic project that is deemed “commercial” both censors speech and violates the First Amendment.
The amicus brief was joined by American Photographic Artists; American Society of Media Photographers, Inc.; Digital Media Licensing Association; Getty Images (US), Inc.; the National Writers Union, The North American Nature Photography Association; Radio Television Digital News Association; Society of Professional Journalists; and The White House News Photographers Association, Inc. NPPA’s amicus brief was drafted by Alicia Wagner Calzada and Mickey H. Osterreicher with support from Mark I. Bailen of Baker & Hostetler, LLP, Thomas Maddrey of ASMP and Sean Fitzgerald from NANPA. Mr. Price is represented by Robert Corn-Revere and Ronald London of the law firm Davis Wright Tremaine.
The amicus brief can be read/downloaded here.