Permit Requirements for Filming in National Parks Violate First Amendment

In this morning's Price v. Barr decision, Judge Colleen Kollar-Kotelly (D.D.C.) held:

[1.] Filming, including for purposes of making a film that would be commercially distributed, is protected by the First Amendment.

[2.] The permit requirements are content-based, because

[The requirements] do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, and specifically to a type of filming, "commercial filming." 54 U.S.C. § 100905(a). Section 100905's implementing regulations make this content-based distinction even more apparent, defining "commercial filming" as the "recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income." The application of § 100905's permitting regime, therefore, necessarily turns on an assessment of whether the content of a film was meant to appeal to a market audience and generate income.

Consider, for example, the enforcement of § 100905 against Mr. Price and his film Crawford Road. To determine whether Crawford Road ran afoul of § 100905's permitting regime, NPS officials needed to review the film and determine ex post whether the content Mr. Price included therein was geared towards a "market audience" or evinced some "intent of generating income." 43 C.F.R. § 5.12. If, however, Mr. Price's film was "non-commercial" or happened to feature only news worthy "information … about current events or … of current interest to the public," the permitting requirement would not apply, see id. at § 5.4(a).

[3.] The requirements must therefore satisfy strict scrutiny, which they can't do. The "governmental interest in revenue collection" isn't compelling enough; and the regulations aren't narrowly tailored to the interest in "[p]rotecting national park land and the resources it contains":

First, § 100905 and its implementing regulations are overinclusive. On their face, § 100905 and its implementing regulations flatly require a paid permit for all "commercial filming." This regime, therefore, requires "individuals and small groups to obtain permits before engaging in expressive activities," just the same as it does for large groups with heavy and potentially disruptive filming equipment. Defendants offer no explanation for how the broad sweep of this permitting regime is sufficiently tailored to the government's goal of protecting federal land….

Relatedly, § 100905's permitting regime also excludes non-commercial filming without any consideration for the damage that activity might also cause to national parks. For example, a "non-commercial" filming production carried out by a non-profit organization or a news crew would escape the reach of § 100905's permitting regime, even if those groups used heavy filming equipment that damaged federal land.

I'm not sure that a distinction between commercial filming and noncommercial filming, turning just on whether the result is to be commercially distributed, is content-based. But I agree that the news-gathering exemption, for "information that is about current events or that would be of current interest to the public," makes the rules content-based, see Regan v. Time, Inc. (1984). And I agree that the rules can't pass the strict scrutiny required for such content-based restrictions.

Comments

[jjsaz]

Awesome! Simply awesome!

[Soronel Haetir]

Re: uncertainty about the distinction being content-based. Doesn't the fact that the NPS has to examine the product before deciding whether the regulation applies pretty much answer that question?

Certainly that's what I've gotten out of the various city sign ordinance cases, that if what goes on the sign matters then the ordinance is content-based at the very least.

[Stephen Lathrop]

Soronel Haetir — Based on informed legal opinion here from EV, I would guess your summary is accurate with regard to the way EV wants the law treated—and probably accurate with regard to what the legal rule actually is. I'm not a lawyer, so double check me.

Problem is, that makes speech questions into an open door for courts to regulate without limit all kinds of policy, including kinds which affect speech only incidentally, without purpose of targeting speech at all. Which makes no sense to me.

Consider, a locality hypothetically wants to exclude some kinds of public-facing commercial activity from a residential zone. The objective is not to target commercial activity per se. Commercial activity practiced by residents without need of a public interface is judged by policy to be a net benefit to the residents who practice it, and free of disruptive implications for the others. So legislative policy is formulated to exclude accoutrements of public-facing commerce as burdensome to residential purposes, but to permit commercial activity without such accoutrements as an enhancement of residential amenity.

In short, it is the public commercial interface itself which policy judges burdensome to residential use—not anything about commercial speech content.

Note that the policy is not, for instance, intended as a policy against signs, per se, some of which the policy finds to be residential amenities. Real estate for-sale signs are judged residentially useful, and thus consistent with the residential purpose of the zone. Likewise, for political yard signs, justified because the policy legitimately chooses to prioritize the political liberty of residents ahead of public-facing commerce.

Alas, would-be commercial users who require public interfaces dislike that policy. They want commercial signs. So they avail themselves of EVs "content-based distinction," doctrine. In court they argue a rule against their signs is government speech censorship, unless all signs for every purpose are excluded alike. The long-standing legal principle which permits zoning to segregate land uses by purpose thus comes under legal attack, despite the fact that the case is ostensibly limited to a completely different kind of case—controversy over free speech principles.

Legal arguments which work that way are an open-ended means to extend court jurisdiction illegitimately, and make it encompass policy questions which courts have no legitimate business to decide. It is never surprising to find lawyers cheering for enlargement of their sphere of influence. But please, stay mindful that the sphere of policy influence is finite, and enlargement for lawyers and judges is subtraction for everyone else.

What EV's "content-based distinction" doctrine constructs is not so much a slippery slope, as a handhold-free precipice. I suggest it is unwise to pitch over the edge of that precipice the liberty of self-government by representative democracy. Even speech-rights absolutism is not worth that.

[Absaroka]

Clark and Ellen Griswold are driving through Yellowstone. Their son Rusty points his camera out the window and takes video so he can post it on his non-commercial blog. Daughter Audrey also films out her window, but she plans on using the film for profit on her OnlyFans account. Audrey has not received the needed permit.

I eagerly await your description of how Audrey, but not Rusty, are damaging the park.

[Stephen Lathrop]

Absaroka — I await your information on what basis constitutionally legitimate policy is legally required to manage the person-by-person distinctions you demand.

Of course generally applicable policy will prove inconvenient, even unreasonably inconvenient, in many individual instances. There is a remedy for that, but it is not to go to court to demand bespoke personal tailoring for every law.

The remedy is to test politically, on the basis of experience, whether the policy has proved too burdensome to too many people. Then legislatively to correct, repeal, or re-endorse the policy in a politically accountable way.

Will that prove an efficacious remedy in each instance of unreasonably-inflicted personal frustration? Of course not. Too bad. The objective is that if bad policy effects are generally noted, cumulative experience will prove politically influential. That is the best you can hope for, without throwing self-government overboard, and submitting instead to judicial supremacy—which would prove less accountable, and provide zero advantage for solving the problem.

[Dr. Ed 2]

Movies -- in either film or electronic format -- are nothing more than multiple still pictures. So if they didn't make *some* distinction, they would have to require every tourist in DC get a permit and that would be a freaking nightmare. They are going to haul you into court for taking a picture of your children in front of the Lincoln Memorial?

Think they might get some calls from Congress about that???

The problem is that the digital video equipment is now cheap enough to put near-movie quality in anyone's hands.

[Dr. Ed 2]

The solution is ability to restrict public access and/or use of motor vehicles and/or externally powered lighting equipment, and/or anything that punctures the turf.

If they were bright enough to adopt that as their criteria, problem solved. They probably could solve it merely by requiring permits for dressing room trailers.

[Doug Huffman]

I have long advocated the eviction of motor vehicles from the National Parks. Park concessionaires profit from the needy unable.

[Malvolio]

I'm not sure that a distinction between commercial filming and noncommercial filming, turning just on whether the result is to be commercially distributed, is content-based.It is not literally content-based, of course, but the justification for, let us call it, “purpose-based” discrimination is the same as for the content-based kind.
Imagine the restriction were against filming material meant to support the Republican Party, or (more plausibly, I suppose) meant to criticize the National Park Service. All the reasons for keep the government from controlling content (leads to tyranny, leads to discrimination, prevents people from participating in public life, prevents people from exercising their natural rights) work exactly as well to keep government from controlling intent.
I don’t know enough (read: anything) about precedent and the relationship between different levels of courts to say whether the court should have explicitly created a rule against purpose-based discrimination rather than stretching the existing rule — but they got to the right result.

[John F. Carr]

The subway system in Boston used to prohibit photography without a permit. The original reasoning was along the lines of "photographers need big equipment and tripods that might interfere with use of the subway." Technology undermined that justification. Towards the end the rationale was the need to prevent terrorists from taking pictures of the subway. Eventually, when camera phones were carried by around half of subway riders, the government gave up.

(They also required permits for busking, with an audition requirement. Not sure if that's still in effect.)

[Dr. Ed 2]

The Commonwealth *did* however quickly pass a law prohibiting
"upskirting" or taking a picture up women's dresses.

[Dr. Ed 2]

And then a decade ago, Amtrak arrested someone for participating in their own photo contest. I'm not making this up...

https://www.nytimes.com/2010/07/28/nyregion/28about.html

[Stephen Lathrop]

So, a terrible decision at the intersection of two bad judicial trends:

1. Use of levels of scrutiny to establish judicial supremacy over everything.

2. Usurping judicially the legislative prerogative to determine the degree of necessity for legislation.

Unless overturned, this decision will predictably have a bad effect on the wild character of the national parks, as experienced by visitors. The first problem will be wedding photography, and to a lesser degree event photography. Analogous problems will follow, in a descending spiral.

The national park system was, of course, established for the specific purpose of de-commercializing natural scenic attractions—specifically at Yellowstone National Park, and by extension everywhere. That was the impetus for establishing the park system.

Congress recognized with concern the notable commercial potential inherent in Yellowstone's hot springs, geysers, wildlife, and grandiose scenery. It was the intent of congress to exclude then-incipient commercial uses, to keep those wild features as close to their natural condition as might be practicable. The record on that is unambiguous.

If this decision stands, you can count on multiple wedding parties surrounding Old Faithful, timed to record every eruption in a blaze of strobes, popping champaign corks, and velvet rope exclusions to keep other members of the public from mixing indiscriminately with the wedding parties. Each wedding shift will be assembled to cram in as many parties as possible, position them to take maximal advantage of the best visual vantage points, and then abruptly disassembled post-eruption, to open access for a new cohort of would-be newly weds and their guests.

It will be an ongoing industrial operation. The crowds of customers thus attracted will become magnets for other kinds of wedding service businesses. Presumably, jurists like Kollar-Kotelly will then discover that those businesses involve commercial speech—protected in its own rite, alongside expressive speech—which likewise cannot be excluded from the national parks.

The park system will try to limit damage by confining wedding photography practice to approved concessionaires. There will be permits and fees, and special concessionaire privileges to restrict and exclude the non-customer public from parts of venues concessionaires control—in short, conduct exactly like the other commercial conduct to which the parks have fallen prey—and thus a further expansion of the vice the park system was established to minimize.

Precedents and principles established to accommodate photography will shortly thereafter be used as a lever to pry open further commercial access to the National Parks, by others among the vast horde of commercial exploitation mavens who never give up trying to turn everything wild, protected, and accessible into Disneyland. As John Muir observed long ago, "Nothing dollarable is safe."

The Democratic congress ought to find a way explicitly to overturn this decision with a law refreshing the original anti-commercial policy which established the park system in the first place. They should have no trouble recruiting bi-partisan support. Protection of the national parks has consistently polled near the very top of the small list of issues voters of both parties endorse enthusiastically. My suggestion is that congress make its purpose unambiguous by titling the legislation, "The Anti-Commercial Law."

[Dr. Ed 2]

Please explain why "velvet rope exclusions" can't still be regulated?

And as to champagne corks, there's probably some endangered animal that will try to eat them, and I trust you can figure out the rest. (Aren't alcoholic beverages already banned from National Parks?)

[David Nieporent]

I'm shocked that Lathrop found a free speech decision he didn't like. He's usually so supportive of the first amendment.

[Stephen Lathrop]

No, Nieporent. The question what damages national parks—and which means effect the legitimate end of protecting national parks—is a policy dispute, not a speech infringement. Just because people express themselves while they do stuff doesn't mean courts empowered to protect speech also get to declare every dispute a speech dispute, and thus decide everything people do.

[David Nieporent]

No, Lathrop. Anything could be framed as a "policy dispute." But when the resolution of that policy dispute involves restricting speech, that makes it a free speech issue.

That people express themselves when they do stuff does mean that courts empowered to protect speech against government encroachment get to weigh in. Of course, that does not necessarily mean the law falls; there's a balancing test under O'Brien. Now, a law that purely bans conduct, which merely incidentally affects speech, is likely going to survive. But this rule expressly targets speech. It doesn't ban commercial activity, or too many people assembled in one location, or the like. No, it bans disapproved speech.

[Stephen Lathrop]

Defendants offer no explanation for how the broad sweep of this permitting regime is sufficiently tailored to the government's goal of protecting federal land….

. . . where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

I am not a lawyer. Maybe all the lawyers today think John Marshall's view in that second quote doesn't apply. Maybe it has been overruled by later precedent. But the tension between the two quotes is striking.

Can you quote the part of 54 U.S. Code § 100905 where, "this rule expressly targets speech?"

I mean quote from the rule relied upon, not from the court's characterization. I'm not seeing it, unless your objection is to the use of the term, "Commercial Filming." Is that it? Your libertarian heart gets cranky because it looks like policy has taken note that commercial filming works differently than non-commercial photography? Or are you objecting to letting the government impose fees when for-profit commercial activity takes advantage of public resources managed at public expense?

[David Nieporent]

I am not a lawyer. Maybe all the lawyers today think John Marshall’s view in that second quote doesn’t apply.

Maybe you missed the first few words you quoted, which is odd because you quoted them? "where the law is not prohibited"

I’m not seeing it, unless your objection is to the use of the term, “Commercial Filming.” Is that it?

No, my objections is not to the use of a term. My objection is the actual application of the law to commercial filming — which is, of course, speech. (Yes, I'm sure that's your cue to try to pedant about some distinction between speech and press that's relevant only in your mind.)

Or are you objecting to letting the government impose fees when for-profit commercial activity takes advantage of public resources managed at public expense?

As has already been explained to you, and as the court explained, the law in question does not apply to "for-profit commercial activity." It applies to commercial filming:

"Unlike the municipal ordinance in Havlak, § 100905 and its implementing regulations do not apply generically to all commercial activity in national parks. To the contrary, the permitting regime applies to filming, a form of expressive speech, see disc. supra at § III.B.1, and specifically to a type of filming, “commercial filming.”

[Stephen Lathrop]

Nieporent, I ask you to quote the law, and you quote only the decision I criticize. Your argument is circular, and you've got nothing.

As for Marshall, a law to protect the National Parks cannot possibly be a prohibited end under the constitution. According to Marshall, it is not for the court to constrain the means, which in this case regulate the activity—not the content—of commercial filming. You are probably at a disadvantage because you have no notion how disruptive that activity is, nor how proportionate the regulation is to the activity.

You are doing so poorly at arguing your case that you lose even my carefully cultivated habitual deference when you condescend, "As has already been explained to you." Which you never tire of doing. If you are doing that in court, maybe you ought to reconsider. It's anti-persuasive. I doubt you do that in court. It would be a clumsy way to dis-serve your client. In this instance, your client is only your argument, and you are losing it.

[David Nieporent]

As for Marshall, a law to protect the National Parks cannot possibly be a prohibited end under the constitution. According to Marshall, it is not for the court to constrain the means, which in this case regulate the activity—not the content—of commercial filming.

No; you completely misunderstand the case and the topic. Marshall did not say that if the end is legitimate, anything goes regardless of how it offends the constitution. Your misinterpretation would have the ends swallow all restrictions found in the constitution: "'Protect parks' is a legitimate end; therefore all people who defile the parks shall be imprisoned without trial." No. Marshall was talking about the necessary & proper clause, not the entire constitution.

According to Marshall, given two (or more) ways to accomplish a legitimate goal, the courts don't get to say, "Well, A will work better than B, so it's unconstitutional for Congress to pick B because B isn't necessary."

But Marshall in no way suggested that given two or more ways to accomplish a legitimate goal, "Well, B infringes on rights protected elsewhere in the constitution but that's okay because the end is legitimate."

[Krayt]

To preserve a park, one wants to stop damage. Commercial filming is not damage. If they are concerned of heavy trucks driving on grass, make rules about that.

Most likely, this is about getting paid for permits (or getting "paid" to issue permits.

[Stephen Lathrop]

Krayt, you say commercial filming is not damage. I say it is. Neither of us is empowered to decide that question for the nation. We are, however, empowered to take our differing points of view to congress, using the political process.

Congress, in turn, is empowered to take our views into account. It can keep us in mind while deciding the degree of necessity for use of particular means to effect the constitutionally legitimate end of preventing damage to the national parks.

See what's not there? Any role for the courts. Let them in, and the process outlined above becomes a sham. The courts decide the question without anyone's input, based on their own assessment of which means are necessary, and how necessary, and which means are not at all necessary. Deciding the necessity of means, a policy question, is not a job for the courts.

If courts do it, they are not accountable for what they do. Policy gets made without politics. Which means you and I get left out too.

The more general point I began with, is that recently, courts have been invited to use the 1A as an all-purpose lever to adjust policy. Speech, the press, assembly, religion, petition are implicated variously, and almost invariably with respect to one or another of them, in every question of policy. That happens because the 1A freedoms encompass so many fundamentals of human behavior, almost regardless of context.

So no matter what a policy dispute may be, it can usually be reinterpreted as manifestation of some 1A protected activity. And courts have too often been doing that reinterpreting, as a means to give themselves jurisdiction over the policy disputes themselves. That has to stop.

[David Nieporent]

See what’s not there? Any role for the courts.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

[Helvidius]

I wouldn't say it's content-based, but conduct-based. Commercial filming often requires blocking off areas to other park users than non-commercial filing does not. Could they shoot WW84 on the National Mall without fans mobbing the stars or disrupting scenes, or do they need to be able to control access of persons not related to the project in order film the shots they want, to include stunts that might endanger others? Non-commercial filming generally doesn't seek to exclude access or be disruptive to other park users.

[Dr. Ed 2]

And as I suggested above, THAT'S where you make the distinction.

You want to be able "to control access of persons not related to the project in order film the shots they want, to include stunts that might endanger others" then you need a permit.

If I want to take some pictures of the Lincoln Memorial at 5AM when no one else is there to use in my US History curriculum, I don't need one....