A court has upheld a National Park Service fee and permit requirement for commercial videography in national parks, overturning a previous ruling that found the requirement a violation of First Amendment rights.
As noted by the National Press Photographers Association (NPPA), the original case was brought by filmmaker Gordon Price, who was fined for failing to obtain a filming permit from the National Parks Service (NPS ) when the film was released. Crawford Road. Some scenes for this movie were shot at Yorktown Battlefield in the Colonial National Historical Park, which is NPS land.
Because of this, a permit was required, and although NPS eventually dropped its lawsuit against Price, it sued to strike down the law in violation of its First Amendment rights. A district court agreed and found the law an unconstitutional violation of the First Amendment and struck down the law.
But earlier this week, a three-judge panel overturned that decision two-to-one. The gist of the case concluded that the national park system was a public forum and as such speech was protected therein. But in the opinion written by Judge Douglas Ginsberg, the judges concluded that while parts of a national park could be considered a public forum, that would not apply to cinema. He writes that because “a filmmaker does not seek to communicate with others in the location where he is filming, the filmmaker does not use the location as a ‘forum'”.
One of the three judges on the panel – Judge David Tatel – disagreed and wrote what the NPPA calls a “scathing dissent” from the judgment.
“By removing the protection of public forums from filming, my colleagues – for the first time ever – disaggregate the creation and dissemination of speech, thereby degrading First Amendment protections for filming, photography and other activities essential to free expression in today’s world,” writes Tatel.
“My colleagues are reinventing the public forum to protect the baffling politician but not the silent photographer, to protect the screaming protester but not the note-taking journalist. These distinctions find no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of speech from public forums than to control squirrels who may enter a conservation easement.
Tatel J. says that the analysis of the public forum should turn on the home, not the type of expressive activity that takes place there.
“By removing filming from the protections afforded to expression in public forums, the court puts us in direct conflict with other circuits and leaves important expression activities unprotected in places where the guarantee of freedom of expression of the First Amendment should be at its peak.”
The NPPA agrees with Justice Tatel.
“We have filed amicus briefs in support of the filmmaker at both the district court and appeals court levels and are extremely disappointed with the notice,” writes Alicia Calzada, assistant general counsel at the NPPA.
“The idea that the act of making a film is not expressive speech simply because it is a step in the process threatens freedom of expression and goes against the overwhelming authority that protects free speech every step of the way. As the Tenth Circuit was held recently, in Irizarry c. Yehia“video recording is ‘unambiguous’ speech-making, not mere conduct. If speech-making did not warrant First Amendment protection, the government could circumvent the Constitution by simply proceeding upstream and by stemming the source of the discourse.
The Foundation for Individual Rights and Expression (FIRE) says the decision is “puzzling”.
“In upholding the constitutionality of the NPS license and fee regime, the court drew a confusing distinction between the act of filming and other stages of final communication through film, finding that recording video “simply involves a non-communicative step in speech production,” FIRE writes.
“The court’s finding flies in the face of decades of case law concluding that the process of filmmaking is expressive and that the First Amendment also protects the creation and dissemination of speech, both of which are essential to communication. .”
FIRE says the implications of this decision are “staggering”. The foundation says the move means Ansel Adams would have had First Amendment protection to display the National Parks photos, but it wouldn’t apply to him for taking them.
“You have to wonder how the First Amendment can fully protect your ability to distribute your film if your right to do so in the first place is diminished,” said FIRE General Counsel Ronnie London, who as attorney at Davis Wright Tremaine before joining FIRE represented Price in his lawsuit against the National Park Service, he says.
“According to court and NPS logic, backpackers who upload ‘van life’ footage of their trips to Instagram for ad revenue without a license and paying government fees deserve to be in jail.”
The Home Office tells the NPPA that the NPS is still applying the interim guidelines that have been in effect during the appeals process and will not change the rules unless the court issues a warrant.
“If and when the ruling takes effect, anyone engaged in ‘commercial filming’ on National Park Service land would be required to obtain a permit, whether it’s an iPhone or mass production” , explains the NPPA.
Photography rules will not be affected, nor will content collected by photojournalists for informational purposes, but the new ruling means that any video content captured on federal lands without a permit and then monetized in any way either would be in violation of the law.
“The potential ramifications of the Circuit Court’s interpretation of the First Amendment are staggering,” London says. “The motto of the NPS is to foster ‘enjoyment, education and inspiration’, but it instead tramples on the rights of filmmakers.”
Picture credits: Photos licensed through Depositphotos.