A filmmaker shooting in Colonial National Historical Park was practicing his First Amendment rights and didn't need a permit, a judge has ruled.
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.
Comments
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.
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?
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.
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.
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.