Gordon Price v. Merrick Garland
45 F.4th 1059
| D.C. Cir. | 2022Background
- Gordon Price, an independent filmmaker, shot scenes on National Park Service (NPS) land without obtaining a commercial-filming permit or paying the prescribed fee; his small crew used a single camera, tripod, and microphone.
- Price was charged criminally; the Government later dismissed the charge but did not concede the statute’s constitutionality or forego future enforcement.
- Price filed a civil suit in D.D.C. seeking declaratory and injunctive relief, arguing 54 U.S.C. § 100905 and NPS regulations are facially unconstitutional under the First Amendment.
- The district court treated the permit-and-fee scheme as a content-based regulation in public forums, applied heightened scrutiny (relying on Boardley), found it facially overbroad, and entered a nationwide injunction.
- The D.C. Circuit reversed: it held that filmmaking (as the noncommunicative step of creating speech) is not governed by the special forum rules for communicative activity; instead regulations of filmmaking on NPS land are reviewed for reasonableness and the permit-and-fee regime is reasonable and therefore constitutional on its face.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does public‑forum doctrine apply to filmmaking on NPS land? | Forum analysis applies because filmmaking is First Amendment–protected speech. | Filmmaking is a noncommunicative step in speech creation, not use of the forum for communication, so forum rules do not apply. | No; forum analysis applies to communicative activity — filmmaking is a noncommunicative step and is not governed by public‑forum rules. |
| What level of scrutiny governs the permit‑and‑fee regime? | Heightened scrutiny (time, place, manner standards) applies and the scheme fails. | Only a reasonableness review applies to filmmaking restrictions. | Reasonableness review applies to filmmaking on NPS land (even in areas otherwise considered public forums). |
| Are location fees an unconstitutional charge for exercising First Amendment rights (Murdock)? | The fee is an unconstitutional charge on protected expression. | The fee is a proprietorial rent/usage fee for commercial activity on government land and thus permissible. | Fees are permissible as reasonable proprietary charges; Murdock does not categorically forbid such location fees. |
| Is the permit requirement facially overbroad or underinclusive (per Boardley)? | The permit regime is overbroad and underinclusive (e.g., small commercial projects and monetized phone videos captured). | The permit requirement is reasonably related to protecting resources, visitor enjoyment, and managing use. | The permit requirement is not facially unreasonable on the present record; distinctions (commercial vs. noncommercial, news exception) are reasonably related to park management objectives. |
Key Cases Cited
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (establishes forum analysis framework and categories of government property for First Amendment access).
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (delineates modern public‑forum doctrine and standards for restrictions).
- Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939) (historic description of streets and parks as traditional public forums).
- Boardley v. U.S. Dep't of Interior, 615 F.3d 508 (D.C. Cir. 2010) (struck down broad NPS permitting requirement for expressive activities as overbroad).
- Murdock v. Pennsylvania, 319 U.S. 105 (1943) (prohibits charging for the enjoyment of a constitutional right; relevant to fee challenges).
- United States v. Kokinda, 497 U.S. 720 (1990) (reasonableness standard for restrictions in nonpublic forums).