514 F.Supp.3d 171
D.D.C.2021Background
- Plaintiff Gordon M. Price, an independent filmmaker, challenged 54 U.S.C. § 100905 and implementing regs (43 C.F.R. Pt. 5; 36 C.F.R. § 5.5) requiring permits and fees for "commercial filming" on lands managed by the Department of the Interior/NPS.
- Price filmed scenes for a prior feature at Yorktown Battlefield without a permit, received a violation notice under 36 C.F.R. § 5.5, and later brought a pre-enforcement facial First Amendment challenge after the government dismissed criminal charges.
- Section 100905 mandates permits and fees for "commercial filming" (defined by regulation as recording for a market audience/intending to generate income) but exempts news gathering; fees may include a location fee and costs.
- Price alleges the statute/regulations are content-based, overbroad, and not narrowly tailored to protect park resources; he stopped or altered filmmaking and distribution plans because of the permitting regime.
- The Court, on cross-motions for judgment on the pleadings, found Price has standing for the commercial-filming claim, held filmmaking is protected speech, concluded the regime is content-based and fails strict scrutiny/tailoring, and granted declaratory and permanent injunctive relief against permitting/fee enforcement for commercial filming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for pre-enforcement challenge | Price intends to film in NPS parks, was previously cited, and faces a credible threat of enforcement | No injury in fact; challenge not ripe | Price has pre-enforcement standing as to commercial-filming provisions (credible threat + intent) |
| Is filming a movie protected speech? | Filming/recording is inherently expressive and part of the creative process | Did not meaningfully contest protection | Filming a movie is protected First Amendment expression |
| Forum characterization | NPS lands include traditional and designated public forums (parks, free-speech areas) | Emphasized regulatory interests in land protection | Regulations regulate speech in public forums, triggering heightened scrutiny |
| Content-based vs content-neutral regulation | Targeting "commercial" filmmaking discriminates by message/purpose (market intent) | Analogized to content-neutral commercial-activity ordinances | Statute/regulations are content-based (distinguish by purpose/content) |
| Scrutiny/tailoring and alternatives | Requirement is overinclusive, underinclusive, and leaves no intra-forum alternatives (no small-group/light-footprint exception) | Justified by resource protection and revenue; analogies to other courts | Fails strict/intermediate tailoring; impermissibly burdens more speech than necessary; fees cannot justify content-based restriction; injunction granted |
Key Cases Cited
- Carney v. Adams, 141 S. Ct. 493 (2020) (Article III case-or-controversy/standing principles)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing for credible threat of enforcement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing framework: injury, causation, redressability)
- Woodhull Freedom Foundation v. United States, 948 F.3d 363 (D.C. Cir. 2020) (pre-enforcement review in First Amendment context)
- Boardley v. U.S. Dep't of Interior, 615 F.3d 508 (D.C. Cir. 2010) (NPS permit regime struck down for overbreadth/tailoring; controlling forum analysis)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based regulation triggers strict scrutiny)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (law disfavoring speech by purpose/content is content-based)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (distinguishing commercial vs. noncommercial materials is content-based)
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (protection of film and political/economic speech in First Amendment doctrine)
- Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943) (government may not impose charge for enjoyment of constitutional rights)
- Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) (taxing speech targeted at particular speakers/press content is unconstitutional)