Finished movies are protected by the First Amendment, but the act of filming them on government property is not an inherently protected activity, according to a Tuesday decision by the U.S. Court of Appeals for the District of Columbia.
Gordy Price shot his 2018 movie Crawford Road on National Park Service land without first obtaining a permit and paying a fee. After the initial screening, the NPS cited him with a felony, which carried a possible jail term of up to six months and a fine. The citation was withdrawn, but Robert Corn-Revere, Davis Wright Tremaine’s First Amendment specialist, took the case and Price sued the U.S. Attorney General (then William Barr) along with Interior Department officials in December 2019. and the National Park Service for the constitutionality of the rule. And Price’s indie film about a reportedly haunted section of Virginia’s Colonial National Historical Park became the center of a legal battle over the extent to which government-owned filmmaking is a protected activity.
In a huge win for filmmakers, U.S. District Judge Colleen Kollar-Kotelly sided with Price in January 2021, finding the plan unconstitutional. She issued an injunction banning the licensing and fee requirements for commercial filming and “prohibiting the prosecution and imposition of criminal liability thereunder.”
The statute in question (read it) here) required a license only to make commercial films — it generally exempted newsgathering and non-commercial projects — and Kollar-Kotelly found that this amounted to a content-based restriction on Price’s First Amendment rights.
“Mr. Price’s filmmaking in these parks constitutes a form of expressive speech protected by the First Amendment,” she wrote in the opinion, adding that “the creation of a film must also be protected by freedom of expression by the First Amendment. To find anything else would artificially disconnect an integral part of the expressive process of filmmaking.”
The government appealed, and on Tuesday the DC Circuit released its 2-1 decision to overturn the ruling.
“We believe that the regulation of film-making on government-controlled property is only subject to a ‘standard of reasonableness’, even when filming takes place in a public forum. Because the licensing and fee requirements are reasonable, we are reversing the district court order,” writes Senior Circuit Judge Douglas H. Ginsburg.
Ginsburg believes that special protections only apply to ‘communicative’ activities in a public forum, such as ‘meeting, exchanging ideas with and among citizens, discussing public issues, disseminating information and opinions, and debate’. He further believes that no piece of government property is a public forum and not every activity protected by the First Amendment is communicative.
“[W]We are convinced that it would be a category error to apply the speech protection rules of a public forum to regulation of an activity that involves only a non-communicative step in the production of speech,” Ginsburg writes.
While protected as speech under the First Amendment, filmmaking, like typing a manuscript, is not itself a communicative activity; it is just one step in creating speech that will be communicated at another time, usually in a different location,” Ginsburg writes. “There is no historical right to access government property to create speech.”
In short, Ginsburg writes:[T]The main conclusion from the foregoing analysis is that, with regard to non-communicative first amendment activities such as filmmaking, the highly protective rules of a traditional public forum do not apply. … As a result, filmmaking on all NPS countries is subject to the same ‘standard of reasonableness’ that applies to restrictions on first-amendment activities in a non-public forum.”
Ginsburg notes that reasonableness is a low bar and that the goals of the NPS licensing and compensation scheme (revenues and protection of the parks) are reasonable by the standard.
Circuit Judge Karen LeCraft Henderson wrote a brief unanimous opinion emphasizing the “limited scope” of the decision. “We conclude that the regulation of most non-communicative communications on government property is subject to ‘reasonableness’ assessment,” she writes. “We don’t have to — and don’t want to — explain the full outlines of what is and isn’t ‘communicative speech’.”
In a scathing dissent, Senior Circuit Judge David S. Tatel criticizes the decision to focus on the standard of reasonableness. “My colleagues are commemorating the public forum to protect the punching politician, but not the silent photographer, to protect the screaming protester, but not the reporter taking notes,” Tatel writes. “These differences find no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of speech from public forums than to police which squirrels are allowed to enter an easement.”
He argues that this decision departs from precedent lifting similar restrictions as being too broad and contrary to the core principles of the First Amendment. “[T]The court today maintains these restrictions on grounds separate from the precedent of our court and that of our sister circuits,” Tatel writes. “Because the licensing and fee requirements sanction far more speech than is necessary to advance the government’s purported interests, they violate the First Amendment.”
Tatel cites a 2010 decision in Boardley v. United States Department of the Interior. “Like the NPS regulations in that case, the Permit Regime taxes significantly more speech than is necessary to achieve significant government interests in protecting NPS assets and preventing interference with park visitors,” Tatel writes. He argues that because the regulations define “commercial filming” as any “film, electronic, magnetic, digital or other recording of a moving image by an individual, company or other entity for a market audience with the intent to generate revenue”, this type of limitation is not narrowly tailored enough to pass scrutiny. (Ginsburg argued) boardley is irrelevant because it involved “the dissemination of written material”, which is communicative activity.)
“[T]The Permit Regime applies to an extremely broad group of people, ranging from large-scale film operations to small documentary film crews to individuals who shoot short videos on their phones and later monetize this content on social media platforms,” Tatel writes. “Even a park visitor who shoots a five-minute video on her phone and plans to post it on YouTube and generate ad revenue must get a permit and pay a fee. While major commercial film projects may involve “equipment, film subject and ongoing operations operators” who tax park resources and disrupt visitors, the government gives no reason to believe that individuals and small groups “meanwhile meaningfully” [these] interests.'”
The court overturned Kollar-Kotelly’s decision, overturned the declaratory judgment and permanent injunction, and ordered the court to dismiss Price’s motion for judgment on the pleas and allow the defendant’s claim.
In a short statement to The Hollywood Reporter on Tuesday, Price and Crawford Road co-producer James Person said: “We are disappointed with the decision and are currently considering our options.”
If Price decides to continue his fight, the next step is to petition the US Supreme Court. Given some of the issues Tatel raises in his dissent, including his view that this decision puts the DC Circuit in conflict with other courts of appeal, it appears that modern technology has once again created a free speech issue that is ripe for consideration by the Supreme Court.
Or, as Tatel puts it, “Before anyone stands outside the Yosemite National Park Visitor Center and uses a cell phone to record commentary on our national parks that will be broadcast on an ad-supported YouTube channel, a person must obtain a permit. receive and pay compensation. Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they suspect they can later monetize these images on social media. And when the shootings happen spontaneously, these individuals will be held criminally liable and receive a prison sentence of up to six months, even if they could not possibly have obtained a permit in advance. … By stripping the protections of public forums from filming, my colleagues are splitting – for the very first time – the creation and dissemination of speech, thus protecting the First Amendment for filming, photography, and other activities essential to free speech in today’s world is deteriorating.”