Update Sept 16, 2022 - Gordon Price’s attorney filed a petition for rehearing en banc on September 15, 2022. A typical appellate ruling is made by a panel of three judges. A petition for rehearing en banc asks the entire group of judges on the appellate court to reconsider the case, rather than just three. As Price’s attorney explained when asking for the rehearing, this case “concerns a question of exceptional importance: whether filmmaking is a ‘communicative activity’ protected by the First Amendment or merely a “a noncommunicative step in the production of speech.” NPPA will continue to monitor the progression of this case.
Aug. 23, 2022 - In a disappointing turn, a decision that enjoined commercial film permit requirements on federal lands was reversed today and if it stands, commercial videographers and filmmakers may once again need to obtain permits for filming in national parks, forest land and other federal lands.
The case was brought by filmmaker Gordon Price, who was fined for failing to obtain a film permit by the National Park Service (NPS) when he released the film Crawford Road. Certain scenes were filmed in Yorktown Battlefield in the Colonial National Historical Park, which is NPS land and because of that, a permit was required under 54 U.S.C. § 100905. NPS ultimately dropped its case against Price, but Price sued to overturn the statute for violating his First Amendment rights. A district court agreed and found that the statute was an unconstitutional violation of the First Amendment, overturned the law and enjoined enforcement of the law and the regulations that implemented it.
In today’s opinion in Price v. Garland, written by Judge Douglas Ginsburg, the 2 to 1 panel reversed the district court. The panel held that although some portions of the national park system are public forums, a public forum analysis does not apply to filmmaking. Judge Ginsburg wrote that because “a filmmaker does not seek to communicate with others at the location in which he or she films, the filmmaker does not use the location as a ‘forum’.” Having made this determination, the appellate court declined to apply a public forum analysis, and further held that filmmaking “is not itself a communicative activity; it is merely a step in the creation of speech that will be communicated at some other time, usually in some other location.” Rather, the court determined that filmmaking was “non-communicative first amendment activity” [sic].
Price’s attorney, Bob Corn-Revere, said “we are disappointed with the decision and disagree with it, and Mr. Price is currently considering his options.”
In a stinging dissent, Judge David Tatel wrote, “By stripping public forum protection from filming, my colleagues — for the very first time — disaggregate speech creation and dissemination, thus degrading First Amendment protection for filming, photography, and other activities essential to free expression in today’s world.”
He explained, “My colleagues reimagine the public forum to protect the stumping politician but not the silent photographer, to shield the shouting protester but not the note-taking reporter,” he wrote. “These distinctions find no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of speech from public forums than it does to police which squirrels may enter a conservation easement.” Judge Tatel explained that the public forum analysis should depend on the forum, not on the type of expressive activity that takes place within the forum. He added, “By stripping filming of the protections afforded to expression in public forums, the court puts us in direct conflict with other circuits and leaves important expressive activities unprotected in places where the First Amendment’s guarantee of free speech should be at its apex.”
NPPA agrees with Judge Tatel. We filed amicus briefs in support of the filmmaker on both the district court and appellate court level and are extremely disappointed in the opinion. The notion that the act of filmmaking is not expressive speech merely because it is a step in the process threatens free speech and goes against overwhelming authority that provides protection for free expression at every step of the process. As the Tenth Circuit recently held, in Irizarry v. Yehia, “videorecording is ‘unambiguously’ speech-creation, not mere conduct. If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by simply proceeding upstream and damming the source of speech.” 38 F.4th 1282, 1289 (10th Cir. 2022).
The Department of Interior tells NPPA that the NPS is currently still applying the interim guidance that has been in effect during the pendency of the appeal, and they will not change the rules until the appellate court issues its mandate. If and when the decision takes effect, anyone engaged in “commercial filming” on National Park Service land would be required to obtain a permit, regardless of whether it is from an iPhone or a massive production. Rules for still photography won't change— parks are not allowed to require a permit for still photography under § 100905. Journalists engaged in newsgathering would also be exempt from any potential permit requirements under NPS regulations, unless a permit would be needed to protect resources avoid visitor use conflicts, ensure public safety or authorize entrance into a closed area (so long as obtaining a permit won’t interfere with the ability to gather news).
NPPA members with questions about how this ruling will affect their work in national parks can reach out to either NPPA General Counsel Mickey Osterreicher [email protected] or NPPA Deputy General Counsel Alicia Calzada, [email protected].
This article has been updated to reflect the Department of Interior’s clarification that they are still applying interim guidance and will do so until mandate issues.
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