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In a scathing dissent, D.C. Senior Circuit Judge David S. Tatel says his colleagues are defying precedent and “degrading First Amendment protection for filming, photography, and other activities essential to free expression in today’s world.”
By Ashley Cullins
Senior Business Editor
Finished movies are guarded by the First Amendment, but the act of filming them on government property isn’t inherently protected activity, according to a Tuesday decision from the U.S. Court of Appeals for the District of Columbia.
Gordy Price shot his 2018 film Crawford Road on National Park Service land without first obtaining a permit and paying a fee. After its first screening, the NPS cited him with a misdemeanor, which carried a potential sentence of up to six months in prison and a fine. The citation was dropped, but Davis Wright Tremaine First Amendment specialist Robert Corn-Revere took an interest in the matter, and Price in December 2019 sued the U.S. Attorney General (then William Barr) along with officials from the Department of the Interior and National Park Service, challenging the constitutionality of the rule. Thus, Price’s indie movie about a reportedly haunted section of the Colonial National Historical Park in Virginia became the center of a legal battle over the extent to which filmmaking on government property is protected activity.
In a huge win for filmmakers, U.S. District Judge Colleen Kollar-Kotelly in January 2021 sided with Price and found the scheme to be unconstitutional. She issued an injunction barring the permit and fee requirements for commercial filming and “the prosecution and the imposition of criminal liability thereunder.”
The statute at issue (read it here) only required a permit for commercial filmmaking — it generally exempted news gathering and non-commercial projects — and Kollar-Kotelly found that amounted to a content-based restriction on Price’s First Amendment rights.
“Mr. Price’s filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment,” she wrote in the opinion, adding “the creation of a film must also fall within the ambit of the First Amendment’s protection of freedom of expression. To find otherwise, would artificially disconnect an integral piece of the expressive process of filmmaking.”
The government appealed, and on Tuesday the D.C. Circuit released its 2-1 decision reversing the ruling.
“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,” writes Senior Circuit Judge Douglas H. Ginsburg.
Ginsburg finds that special protection only applies to “communicative” activities in a public forum, such as “assembly, the exchange of ideas to and among citizens, the discussion of public issues, the dissemination of information and opinion, and debate.” Further, he finds not every piece of government property is a public forum, and not every activity protected by the First Amendment is communicative.
“[W]e 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,” writes Ginsburg.
“Though protected as speech under the First Amendment, filmmaking, like typing a manuscript, 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,” writes Ginsburg. “There is no historical right of access to government property in order to create speech.”
In short, Ginsburg writes, “[T]he key takeaway from the preceding analysis is that, with respect to noncommunicative first amendment activity such as filmmaking, the highly-protective rules of a traditional public forum are inapplicable. … The upshot is that filmmaking on all NPS land is subject to the same ‘reasonableness’ standard that applies to restrictions on first amendment activity in a nonpublic forum.”
Ginsburg notes that reasonableness is a low bar and, under the standard, the purposes of the NPS permit and fee scheme (raising revenue and protecting the parks) are reasonable.
Circuit Judge Karen LeCraft Henderson wrote a brief concurring opinion emphasizing the “limited reach” of the decision. “We conclude that the regulation of most non-communicative speech on government property is subject to ‘reasonableness’ review,” she writes. “We need not — and do not — explain the full contours of what does and does not constitute ‘communicative speech.’”
In a scathing dissent, Senior Circuit Judge David S. Tatel criticizes the decision to focus on the reasonableness standard. “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,” Tatel writes. “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.”
He argues this decision deviates from precedent that struck down similar restrictions as overbroad and antithetical to core First Amendment principles. “[T]he court today upholds these restrictions on grounds untethered from our court’s precedent and that of our sister circuits,” Tatel writes. “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.”
Tatel cites a 2010 decision in Boardley v. United States Department of Interior. “Like the NPS regulations in that case, the Permit Regime burdens substantially more speech than necessary to achieve the government’s significant interests in protecting NPS resources and preventing interference with park visitors,” writes Tatel. He argues that because the regulations define “commercial filming” as any “film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income” this kind of restriction isn’t narrowly tailored enough to withstand scrutiny. (Ginsburg argued Boardley is irrelevant because it concerned “the distribution of written materials,” which is communicative activity.)
“[T]he Permit Regime applies to an extraordinarily broad group of people, ranging from large-scale filming operations, to small documentary film crews, to individuals who take short videos on their phones and later monetize this content on social media platforms,” Tatel writes. “Even a park visitor who takes a five-minute video on her phone, planning to post it on YouTube and generate advertising revenue, must obtain a permit and pay a fee. Although large commercial filming projects may well ‘involve equipment operators, filming subjects, and sustained operations’ that burden park resources and disturb visitors … the government provides no reason to think that individuals and small groups ‘interfere meaningfully with [these] interests.’”
The court reversed Kollar-Kotelly’s decision, vacated the declaratory judgment and the permanent injunction, and instructed the trial court to deny Price’s motion for judgment on the pleadings and to grant the defendant’s motion.
In a brief statement to The Hollywood Reporter on Tuesday, Price and Crawford Road co-producer James Person said, “We are disappointed with the decision and currently are considering our options.”
If Price decides to continue his fight, the next step would be petitioning the U.S. Supreme Court. Given some of the issues Tatel raises in his dissent, including his opinion that this decision puts the D.C. Circuit in conflict with other appellate courts, it seems modern technology has created yet another free speech issue that’s ripe for consideration by the high court.
Or, as Tatel puts it: “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. … 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.”
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