The Volokh Conspiracy
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D.C. Circuit Divides on Level of Scrutiny for Regulation of Filming on Federal Property
A panel majority holds that "reasonableness" is all that is required and upholds the Park Service's permit-and-fee requirements.
Today, in Price v. Garland, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to federal regulations imposing permit and fee requirements for filming within the National Park System.
Judge Ginsburg wrote for the Court, joined by Judge Henderson. Judge Tatel dissented. Judge Henderson also wrote a brief concurrence.
Judge Ginsburg's opinion for the Court begins:
Gordon Price is an independent filmmaker. He filmed parts of a feature film on land administered by the National Park Service (NPS) without having obtained the requisite permit and having paid the requisite fee. The Government charged him with a misdemeanor but later dismissed the charge. Price then sued for declaratory and injunctive relief, arguing the permit-and-fee requirements are facially unconstitutional under the First Amendment to the Constitution of the United States. The district court agreed with Price, holding the permit-and-fee requirements do not satisfy the heightened scrutiny applicable to restrictions on speech in a public forum.
We hold that regulation of filmmaking on government controlled property is subject only to a "reasonableness" standard, even when the filmmaking is conducted in a public forum. Because the permit-and-fee requirements are reasonable, we reverse the order of the district court.
And here is a key part of Judge Ginsburg's analysis:
The United States argues that . . . not every activity the First Amendment protects as speech benefits from the strict, speech protective rules of a public forum. 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." Therefore, the United States argues, the district court's forum analysis was misplaced. Price counters that the district judge had it right: There is no basis to distinguish between filmmaking and other activities protected by the First Amendment.
We think the Government is correct. Based upon the historical underpinnings of forum analysis, the evolution of this analytical framework, and the cases in which the Supreme Court has applied it, we are convinced that it would be a category error to apply the speech-protective rules of a public forum to regulation of an activity that involves merely a noncommunicative step in the production of speech. Although that activity warrants solicitude under the First Amendment, that solicitude does not come from the speech-protective rules of a public forum. In reaching this conclusion we are buoyed by the Supreme Court's warning against extending the public forum doctrine "in a mechanical way" to contexts that meaningfully differ from those in which the doctrine has traditionally been applied.
Judge Tatel saw the issues quite differently. Here is how his dissent begins:
Federal law prohibits anyone from engaging in "commercial filming activities" in the national parks without first obtaining a permit and paying a fee. 54 U.S.C. § 100905(a)(1). Even though our court recently struck down similar restrictions on speech in national parks as "overbroad" and "antithetical to . . . core First Amendment principle[s]," Boardley v. United States Department of Interior, 615 F.3d 508, 511 (D.C. Cir. 2010), the court today upholds these restrictions on grounds untethered from our
court's precedent and that of our sister circuits. Because the permit and fee requirements penalize far more speech than necessary to advance the government's asserted interests, they run afoul of the First Amendment.
And how he concludes:
Under today's sweeping holding, regulation of filming on government property is no longer subject to heightened scrutiny, even when the filming occurs in traditional public forums where "the rights of the [government] to limit expressive activity are sharply circumscribed" or designated public forums that the government "has opened for use by the public as a place for expressive activity." . . . Before standing outside Yosemite National Park's visitor center using a cell phone to record commentary on our national parks that will air on an advertisement-supported YouTube channel, an individual must obtain a permit and pay a fee. Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they have any inkling that they might later make money from this footage on social media. And when the filming is spontaneous, these individuals will be criminally liable and face up to six months in prison even though they could not possibly have obtained a permit ahead of time. See 18 U.S.C. § 1865; 36 C.F.R. §§ 1.3, 5.5(a). 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. . . . I respectfully dissent.
