Editor's note: This updates with National Park Service reaction.
A federal judge has struck down as unconstitutional the National Park Service's practice of charging commercial filmmakers who want to shoot in the National Park System, ruling it is a protected activity under the First Amendment.
The ruling (attached below) by U.S. District Judge Colleen Killar-Kotelly stated that the permitting practice, through which the Park Service charged commercial filmmakers for a permit and any costs relating to park personnel assigned to monitor the filming or other cost recovery, "is an unconstitutional restriction on speech protected by the First Amendment."
"The statute imposes a chilling effect on the expressive activities of a wide swath of national park visitors," wrote the judge in her ruling Friday. "Consequently, there is a significant equitable interest in avoiding the unconstitutional application and enforcement of (the requirement) and its implementing regulations."
Congress in 2000 directed the secretaries of Interior and Agriculture "to require a permit and establish a reasonable fee for commercial filming activities or similar projects, as well as certain still photography activities, on federal lands under their respective jurisdictions. The law also directed the Secretaries to recover costs incurred by the agencies as a result of the permitted activity. Fees collected under this authority are to provide a fair return to the United States; be based, at a minimum, on certain listed criteria; and be retained by the Agencies to be available to the Secretary without further appropriation to be used consistent with the formula and purposes established for the Recreational Fee Demonstration Program."
The case was brought by Gordon M. Price, a Yorktown, Virginia, filmmaker who filmed settings in Colonial National Historical Park in Virginia for an independent feature called Crawford Road. The film revolved around "a stretch of road in York County, Virginia, that has long been the subject of rumors of hauntings and was the location of unsolved murders.”
Price, who didn't obtain a permit for filming in the park, debuted the production in October 2018 before an audience of about 250.
"The film garnered some attention in the local press and on social media sites," the judge noted in her ruling. "In December 2018, however, two NPS officers located Mr. Price at work and 'issued him a violation notice for failure to obtain a commercial filming permit.'"
In challenging the permitting requirement, Price pointed out that it does not apply to non-commercial filming, nor does it apply to news organizations. The absurdity of differentiating on the basis of whether a production was commercial didn't escape Judge Killar-Kotelly.
"For example, a 'non-commercial' filming production carried out by a non-profit organization or a news crew would escape the reach of (the) permitting regime, even if those groups used heavy filming equipment that damaged federal land," she wrote.
The permitting language carried no differentiation between large film crews with heavy equipment and small crews with no heavy equipment; Price used a single tripod with a camera and no more than four people.
"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," noted the judge.
Judge Killar-Kotelly, in agreeing with Price, pointed out that the U.S. Supreme Court long has recognized film as being protected under the First Amendment, and that the high court "has found that 'the creation and dissemination of information are speech within the meaning of the First Amendment.'"
Taken in total, Price's "filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment," she ruled.
In Washington, National Park Service officials were reviewing the judge's ruling "and determing the next steps," said Jenny Anzelmo-Sarles, the agency's chief of public affairs and chief spokesperson.
“This case started when the Park Service tried to criminally cite Gordon Price for unobtrusively making a film in a public park,” Price's attorney, Robert Corn-Revere, told the National Press Photographers Association. “But Gordon fought for his rights and prevailed. The court’s decision reaffirms that the act of filmmaking is protected by the First Amendment, and that the government cannot condition this right with arbitrary permit and fee requirements.”
The ruling did not apply to commercial still photography, however, as Price did not challenge that aspect of the Park Service permitting requirements.
In citing the permitting language applying to the Park Service's ability to recoup costs for damages inflicted during filming, the judge pointed out that "(W)hile the government and the public do have an interest in preserving federal lands, such an interest does not justify a widely over-inclusive law that infringes upon free expression. ...
"Moreover, the National Park Service has also shown itself capable of enacting regulations that preserve park resources without overly burdening expressive activity, and may continue to do so in ways that do not run afoul of the First Amendment," she held.
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Comments
This is actually good news for independent filmmakers that document nature.
wondering if this will apply to all public lands, not just national parks. NPs are the focus of the article, but the statute referenced DOI and DoAg and their respective public lands - which includes national forests, wilderness areas, etc.
I am surprised the Rangers went to those lengths to deliver a notice to the filmmaker. They probably earned 10X the amount of OT on this case than the park would have collected on a film permit fee.
My goodness, for those of us who know of this judge and her long and increasingly quirky history, this is one more convoluted ruling, not entirely or always bad, but convoluted, increasingly convoluted in recent years. Let's try to unpack this one.
As this article reports, a permit is or was required for commercial filmmaking in a national park. The primary purpose of requiring such permit is or was, at least in part, to alert park staff to monitor the filming activities, assess any associated visitor disturbances or resource damage, determine any required mitigation, and be there to establish any resulting need for cost recovery. Another purpose of requiring such permit is or was to collect a reasonable fee to reimburse the NPS for the added staff workload associated with all of the above.
Now, Judge Killar-Kotelly has ruled that commercial filmmaking in a national park is protected under the First Amendment, that "filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment," and that it's unconstitutional to require commercial filmmakers to obtain any permit or pay any fee for such permit. However, the judge did not extend her ruling to commercial still photography, which still requires a permit. Hmmm...
With regard to the fact that noncommercial filming carried out by a nonprofit organization or a news crew would not require a permit even if such filming also disturbed other visitors or involved heavy filming equipment that damaged park resources, the article correctly notes the absurdity of differentiating on the basis of whether a production is or is not a commercial enterprise. However, instead of invoking standard administrative protections against arbitrary and capricious regulations, Judge Killar-Kotelly once again overreached, once again used a bazooka when a fly swatter was needed, and with great theatrical flourish invoked the First Amendment.
So, why am I not reaching for my MAGA hat and my Gadsden flag and cheering this protection of my free speech rights? ...well, because the parks actually do need to know when a film crew, commercial or otherwise, is going to be active in the parks. The NPS needs to know for the very reasons listed above ...because they need to monitor the activities, assess any associated visitor disturbances or resource damage, determine any required mitigation, and be there to establish any resulting need for cost recovery ...and because they need a mechanism to collect a reasonable fee for the added staff workload associated with all of the above, all of which is also why they have fishing regulations and charge a fee for fishing licenses. I pay it as a civic duty and without giving them any gruff.
Was there cause to strike the regulations that Judge Killar-Kotelly ruled against? Yes, the regulations were overly broad, inadequately focused, arbitrary and capricious and needed to be rethought, revised, and reworked. Is this really the place to invoke the First Amendment? ...only in the minds of judges like this one and a few other quirky folks.
You wrote a lot of words here in your little word salad and I'm sure entertained yourself in doing so. But you described the NPS motivation, then described the flaw in the motivation, then re-described the NPS motivation as if that explains away the flaw. You're the one who is convoluted and, with each paragraph, increasingly so. As far as commercial photography, judges are not inclined to rule on things not brought forth in the suit before them.
And finally, yes, citing the First Amendment is wholly appropriate and completely necessary when talking about the practice of speech -- almost any speech -- on federal lands. In deed, that is probably one of the only times it is appropriate and necessary.
In conclusion, you are a wacko and you have no idea what you're talking about.
That is because, as the article explained, the plantiff's attorneys did not challenge that aspect of the law and judges generally do not rule on issues that were never raised by parties during the case. This is completely routine and not in the least bit "quirky" or odd and the fact you seem to find it as such tells me you don't know very much about how court cases work.
Great comment, I am still not understanding why the first amendment factors into this decision. The government does dictate what can be filmed. I read that a 'naked and afraid' episode was filmed on public lands. Another basis for Special Use permits is to pay the public for an individual's opportunity to profit off of public lands. I feel this reasoning was left out in this case.
YouTube travel volggers Kara and Nate describe their $1000 fine from the NPS beginning at 7:00 in this video. I understand the need for some supervision of disruptive heavy duty film productions, but "no-hassle" accomodations were definitely needed for the person filming commercially with only a phone or GoPro and maybe a tripod while hiking or describing in a National Park. https://www.youtube.com/watch?v=RHvHn9hs1MY&t=543s
Yeah they do need that protection, you are right, but the Judge didn't overreach. Overreach would have entailed actually making those regulations. The judge just basically said, the guy with a tripod recording videos needs to be left alone. If you want to regulate larger film crews then do it. Don't mess with the little guy expressing himself. Maybe if the NPS did this in the first place then this wouldn't have happened.
But the problem with this NPS regulation is that it is all-encompassing. It lumps me in with a "film Crew." I am a person with a youtube channel and a cell phone which in no way will damage the national park in anyway when I record myself at the park. I agree all the national parks need to be protected but the regulation needs to be rewritten. It is outdated and does not take into consideration commercial filming is something as simple as a gopro or cell phone. And yes, I do know YouTubers who have been funded thousands of dollars for filming in a NP with a cell phone and posting it on YT.
Working in the film industry, it is normal and expected to reimburse locations for attendants to a film project, road closures, encroachment permits, etc. This is specifically about CHARGING for a film permit vs not charging. Any expenses would be reimbursed, but to be paying a fee just for the act of filming somthing considered commercial - no matter how obstrusive or disruptive - vs a news crew or non-commercial (a definition very hard to capture in this circumstance) is the issue. There can be notifications required, without the fees, and any measures taken to mitigate the potential for problems. This is accepted and expected.
Over the decades at Mount Rainier, back when something called magazines were common, I noticed perhaps a dozen full-page glossy ads (usually for cars & trucks), where the scenic image was reversed. I'm only just realizing that was probably intentional to avoid permits and fees.
So Hollywood now can just show up at an NPS site, unannounced, film for hours, days or weeks, trampse wherever they like with their equipment, be totally unsupervised by park staff and pay nothing?
The laws being applied here are considerable when comparing this idea to a major motion picture vs a private party creating content for a small audience, at that point these productions bring in $100-1000 dollars depending on viewership and if that party is even monetizing the video to make profit. Overall, there should never be an infringement such as this that blocks taxpayers from being able to express themselves in press and film, as well as speech. But also, yes there should be restrictions on major motion pictures or film industry so they must be required to pay a fee to utilize these lands for filming while also following strict land guidelines for preservation. Protect the 1st amendment, this law is dumb asf.
Why should someone be allowed to use properties and facilities paid for by taxpayers for personal gain without payment? If an individual wants to go to a National Park property and uses the facilities he/she pays a fee. Camping, pay the fee. Parking, pay the fee. Admission to a site, pay the fee. This is one of the ways the location(s) gain finances to maintain.
On the other hand, without a permit, the Park Service does not have to acknowledge the filmmakers presence, including crowd control or security for the chosen location.
Poor logic. First of all, not every NPS site requires you to pay a fee. Gettysburg Battlefield does not require you to pay a fee. Second, "admission to the site, pay the fee." So maybe they did pay admission to the site. Then what? Pay the fee for each and every individual activity on the site? Blinking. Pay the fee. Getting out of your car, pay the fee. Tying your shoe laces, pay the fee.
Would you then extend this absurd requirement to news organizations who are most certainly making money off using these properties even though that sort of filming was allowed without a permit? Pay the fee.
Someone should be allowed to use properties and facilities paid for by taxpayers for personal gain because, and stick with me here Jack, *everyone* should be allowed to. That is the point of the funding by taxpayers. Get it? Why default to no one being allowed to do something because taxpayers pay for it as opposed to everyone being allowed to do it? Is it because you can't do it?
Just a side note, I live just outside Great Smoky Mountains National Park in TN. While there are fees for campsite/backcountry hiking shelters there are no parking fees or admission fees to visit this National Park. Collecting a fee for commercial filming is helpful in it's unique situation.
I'm shocked there are actually people defending the national park service... The permits where a cash grab and nothing else. We all already pay for the national parks with out tax dollars.
They have to pay private landowners, because they make a huge profit for minimal. They are conducting a business with a huge profit they need to pay.
There seems to be an almost frantic and coordinated rush to misconstrue or just flat misdirect my comments and cover up an important point. I need to rebut this effort.
In my comment, I expressed my disappointment that, instead of invoking standard administrative protections against arbitrary and capricious regulations, Judge Killar-Kotelly overreached and invoked the First Amendment. I also acknowledged that the article correctly noted the absurdity of differentiating on the basis of whether a production is or is not a commercial enterprise. It may be true, as commenters responded, that attorneys did not challenge that aspect and it is also often true that judges may not rule on issues that were never raised by parties during the case.
However, I continue to contend that the proper course on this issue would have been to invoke those aforementioned administrative protections against arbitrary and capricious regulations. Doing so could have been expected to ultimately drive a proper review and correction of this regulatory area as a whole, including correction of the absurdity of differentiating on the basis of whether a production is or is not a commercial enterprise, as well as the absurdity of differentiating between motion filming and still photography.
I continue to contend that the First Amendment was never properly at the core of this case and that invoking the First Amendment in this case was an overreach and and an unnecessary red herring. More to the point here, introducing the First Amendment into this case, either formally during the proceedings or in side discussion or both, was, in my opinion, quite possibly a politically motivated stunt taking advantage of an opportunity afforded by an imperfect jurist. My suspicions are reinforced 1) by the unexpected intensity and vitriol in the comments defending the application of the First Amendment to this kind of case; 2) by the similarities, including similar wording and weaknesses, in those comments; and 3) by the fact that getting someone like Judge Killar-Kotelly to invoke the First Amendment in a case like this is absolutely, exactly, the kind of politically motivated stunt that would get the juices of rightwing opportunists flowing.
I also suspect that the unusual intensity in the comments defending this theatrical application of the First Amendment to this kind of case may actually be motivated on two levels. First, I suspect that, of course, the rightwingers, especially the opportunists who may have hatched this stunt, want their stunt to succeed, want to chalk up a win, want their Gadsden flag to fly high, and do not want the episode examined further. But, second, I also suspect that whichever clerks, assistants, or advisors who whispered in Judge Killar-Kotelly's ear or wrote a draft for this ruling are now fearing her response to the ruling being examined, perhaps to her being used, and are now perhaps even fearing for their cushy positions.
I worked with a French film crew filming in a US National Park. The crew had a permit and paid a fee and was given protection from public interference by an NPS employee during the two hour shoot. The NPS employee blockied the public from entering the film shoot area. Some of the public did not like being blocked in their Park and one guy even yelled during the shoot. The NPS employee theatened him wih arrest. I thought it was awful that apparent US citizens were blocked from using their Park by foreigners that paid a fee and got a permit. No fee, no permit, no NPS protection. I like it that way for foreigners or US citizens.
I hope that the NPS can take a step back and regroup. They need to come up with a new regulation that actually makes sense. Who this hurt was the little guy making occasional videos for youtube, but who wanted to do things by the book(me). They should require permits from people that are setting up equipment that totals more than 50 pounds, or that includes more than 4 people. Make it easy to get a permit, make it advantageous to keep your shoot small. Give large fines for any damage or disruption to the environment. Use some common sense, please, and get the Rangers back to politely policing bear jams and keeping the sky free from drones! Tread lightly and enjoy.
The fee schedule from the NPS does vary on the size of the filming crew and equipment. I believe that filming with just a tripod by yourself does not require a fee to be paid. HOWEVER, the NPS requires a minimum $1,000,000 liability insurance coverage from the filmmaker! So the other issue is the OTHER "fees" that are required by the NPS. There are more than one fee involved with the current rules. I wanted to shoot some "B-Roll" at a National Historic Site. Fine, I could do it without paying a fee since it would've been just me and my camera. However, I still would have been required to buy liability insurance which even for the bare bones policy for an independent filmmaker would cost a thousand or more dollars.
I think you're right on the mark, Tom. The proper approach would be to strike, rethink, revise, rework, and correct the overly broad, inadequately focused, arbitrary and capricious regulations in this subject area as a whole. Do away with the absurdity of differentiating on the basis of whether a production is or is not a commercial enterprise, as well as the absurdity of differentiating between motion filming and still photography. Do a complete systemic review of all the regulations, permits, and fees related to these kinds of operations; do away with any and all arbitrary and capricious elements; and focus on what is needed to protect park resources, reimburse the parks for added workload, and provide a system that monitors, assesses, and recovers the costs of any damages. Eliminate discrimination, bigotry, and implement equitable good governance. Ask the park superintendents for their input. Let's get to work. Given our national problems and the need to protect our parks, we don't have time for any additional extraneous philosophical or political grandstanding.
Totally unrelated, but that's been done before even in filmed commercials. There was a Jeep commercial that was filmed for the US market. It was someone driving through a forested road as various woodland creatures enter his vehicle through an open moonroof and start singing along with the song playing on the stereo. I found a version that was shown in South Africa but just mirror imaged since they drive on the left and use right-hand drive cars. The actor had a watch and a wedding ring on his left hand by on the right in the South African version. The did fix the JEEP logo and the display on the center console display.
After a two and a half year lawsuit against the United States Government we finally won. You can now film on National Park Land without a permit. But the ruling came with a cost. Our movie was held back from release and the bills piled up. I would like to ask for a favour, watch my movie to help us catch up on bills and get this ground breaking movie out to the public (its a very good movie not for faint of heart), now that it has been cleared for release. The ruling in our favor can be seen here National Park Service Can't Require Permits and Fees for Commercial Filming, Judge Rules | Hollywood Reporter
link to Crawford Road movie
Crawford Road | gordon price (pivotshare.com)
This incident that triggered this ruling was totally avoidable. We have developed in this country and now in the NPS an aggressive Law Enforcement mentality and it is now being taught at FLETC and permeates our agency culture. This began many years ago, -- especially after 9/11. But slowly we have seen the NPS LE Ranger force become more and more militaristic, more "police like", and more aggressive and more separate from the rest of the agency. They also feel much more entitled to higher pay, overtime for incidents, etc. How they dress, talk, act and how they expect admiration is apparent and often goes on but no one challenges it. It starts at the top and has been encouraged and facilitated There is little room and space to question what has happened and if you do it is brushed aside as being "anti Ranger" and anti NPS and then we go back to endless hero worship.
Remember when all Rangers had the same badges? Remember when the word Ranger meant something all encompassing. Now we have "Protection Rangers" and they have really one primary job and they let their peers know it for sure. This specialization will continue and we will recruit "Protection Rangers" who often want to be cops. So, "Protection Rangers" will aggressively pursue a film permit violation which probably would have just gone unnoticed by and large - can't imagine these rangers didn't have other things to do on the Colonial Parkway? What superintendent would really want their "Protection Rangers" to show up and issue a citation for a film that was seen by 250 people. Maybe, just maybe, sending a letter or a simple conversation would have done the trick.
I believe this is less about First Amendment and more about the agency's inability to control a "kick in the door, take no prisoners" mentality that now permeates the ranks of our Protection Ranger force and NPS Protection Ranger leadership.
It's always a funny thing about police forces and, frankly, people in authority in general. You usually like them when they're protecting and preserving what, if anything in some cases, you feel entitled to want protected and preserved and you usually like them to be strictly enforcing the rules in those cases. And, you usually like them when they're letting you, with little to no interference whatsoever, do what you feel entitled to do, even in cases where what you want to do might impact what people who are less like you want protected and preserved. But, it's always hard to establish fair and equitable boundaries between what you may or may not have been raised to respect and what the next person was taught to see as their freedoms, liberties, and entitled privileges. Personally, I've been forced back to the point of just wanting the rules to be enforced rationally and, most important, consistently, although even that seems too hard a goal.
Thank you, Protection Ranger, for saying what the majority of us in the service know to be fact. And, as you say, if it's mentioned in any way, one is immediately put into the catagory of being anti law enforcement. Gone are the days of being a Ranger to help the public. It's now the days of "Ranger Brute".
Under the permit law of the NPS, a person filming with an iPhone would need a permit if the video from that iPhone resulted in any income to the photographer. I've been keeping track of this issue for over a decade and the 2000 law from Congress was completely ridiculous and ignored the advances in video cameras like iPhones and DSLR cameras. Under the rules of the NPS, if you were shooting with a Canon or Panasonic DSLR and pressed the shutter for a photograph, no permit is required (commercial or non-commercial use). If you pressed the button to record video, then you need a permit! Or if you take some video of your camping trip with your iPhoee and use it to promote a local camping store's business, you need a permit.
America has some of the most restrictive and punitive laws when it comes to filming on public lands. Other developed nations in the world have no such laws. This doesn't mean if Steven Spielberg shows up with a 500 person crew in Yosemite Valley that he shouldn't have to pay a fee to the NPS to film his next mega-film. But putting the person like this guy in the same category as a Hollywood studio production is just wrong.
I'm glad the judge struck down this unconstitutional law.
Because of incidents like this and other issues, I won't visit any National Park. It's just not worth it since when you enter a Park, you are subject to even more rules, regulations and laws than when you weren't on Federal Lands. I read a story years ago about the criminal justice system at Yosemite. It seems that even getting arrested there lands you in a different place than if you were arrested in Springfield, Anywhere Else, USA. Don't mess with the FEDS is not a joke anymore.
And please, before you flame me, I've probably picked up more trash on trails than most people. I never cut switchbacks, I don't sit in lawn chairs in meadows and I bear-proof every item that has a scent. I don't drink alcohol or play loud music or have a generator.
People here are always talking about "Hollywood can now just trample through and tear everything up without paying a fee" but they forget the Independent filmmaker who likes to make movies. You know little guys like Kevin Smith and Robert Rodriguez who started with micro budgets and made it to the big time. Fees and permits are ways to gatekeep people from being able to actually getting their visions and voices heard. My budgets are as thin as possible when I make a movie. Thank goodness I live in a state that doesn't require permits to film, and most of the cities I film in don't require them either.
But you know, it isn't like the people filming aren't taxpayers, who already pay taxes for the part, paid to enter, paid for parking (if applicable), and are just trying to do what they enjoy just like the rest of everyone there. They still have to follow the rules like not filming people who are not in the film, which goes everywhere, not just in parks.