Gordon Price v. Merrick GarlandGordon Price v. Merrick Garland
Robert Corn-Revere argued the cause for appellee. With him on the brief was Patrick J. Curran Jr.
Glenn E. Roper was on the brief for amici curiae Pacific Legal Foundation and Anthony Barilla in support of appellee.
Mickey H. Osterreicher and Alicia Wagner Calzada were on the brief for amici curiae National Press Photographers Association, et al. in support of appellee.
Before: HENDERSON and TATEL*, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge TATEL.
GINSBURG, Senior Circuit Judge: Gordon Price is an independent filmmaker. He filmed parts of a feature film on land administered by the National Park Service (NPS) without having obtained the requisite permit and having paid the requisite fee. The Government charged him with a misdemeanor but later dismissed the charge. Price then sued for declaratory and injunctive relief, arguing the permit-and-fee requirements are facially unconstitutional under the First Amendment to the Constitution of the United States. The district court agreed with Price, holding the permit-and-fee requirements do not satisfy the heightened scrutiny applicable to restrictions on speech in a public forum.
We hold that regulation of filmmaking on government-controlled property is subject only to a “reasonableness” standard, even when the filmmaking is conducted in a public forum. Because the permit-and-fee requirements are reasonable, we reverse the order of the district court.
I. Background
A. Statutory and Regulatory Framework
By statute, the Secretary of the Interior must “require a permit and . . . establish a reasonable fee for commercial filming activities” on land administered by the NPS.
The regulations also specify that a permit will be denied if, among other reasons, it is likely an activity would: “(a) Cause resource damage; (b) [u]nreasonably disrupt or conflict with the public‘s use and enjoyment of the site; (c) [p]ose health or safety risks to the public; [or] (d) [r]esult in unacceptable impacts or impairment to
The location fee, which must be calculated to “provide a fair return to the United States,” is to be based upon “the number of days of the filming activity,” “the size of the crew,” “the amount and type of equipment present,” and any “other factors . . . the Secretary considers necessary.”
These regulations are consistent with others that apply to various types of commercial activity conducted on land administered by the NPS. For instance, it is generally prohibited to “engag[e] in or solicit[] any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States.”
All these regulations are consistent with and implement the Congress‘s declaration “that it is the policy of the United States that the United States receive fair market value of the use of the public lands and their resources.”
B. Facts
The following facts are taken from the district court‘s memorandum opinion. Plaintiff-Appellee Gordon Price is a part-time independent filmmaker. In 2018 he released Crawford Road, a film about a stretch of road in York County, Virginia that was the location of unsolved murders and long rumored to be haunted. Price filmed scenes on the Yorktown Battlefield in the Colonial National Historical Park, land administered by the NPS, without first obtaining a permit from the NPS and paying the fee. For those scenes, Price used a camera, a tripod, and a microphone. A crew of no more than four people were present.
Crawford Road premiered in October 2018 to an audience of around 250 people in Newport News, Virginia. A couple of months later, NPS officers issued Price a “violation notice” for failing to obtain a commercial filming permit.
In the wake of the criminal charge, Price canceled further screenings of Crawford Road and removed from it all footage shot on NPS land. Discussions about a distribution deal for the film came to an abrupt halt. Price had also been doing preliminary work on another film that would involve filming on land administered by the NPS, but he refrained from shooting this footage out of fear of prosecution.
Appearing before the United States District Court for the Eastern District of Virginia, Price moved to dismiss the charge, on the ground that
In December 2019 Price pressed his constitutional argument in a civil complaint filed in the United States District Court for the District of Columbia. Price sued several individuals in their official capacities: the Attorney General of the United States of America, the Secretary of the Department of the Interior, and the Deputy Director Exercising the Authority of Director of the NPS. Alleging that
The parties cross-moved for judgment on the pleadings. The district court denied the defendants’ motion and granted Price‘s.
In the memorandum opinion accompanying her order, the district judge treated the permit-and-fee requirements as content-based regulations of speech and determined that they do not withstand heightened (intermediate or strict) scrutiny. Price v. Barr, 514 F. Supp. 3d 171, 187-93 (D.D.C. 2021). She therefore concluded the requirements unconstitutionally restrict speech on land administered by the NPS that “courts have already identified as traditional public forums” (e.g., the National Mall and sidewalks outside the Vietnam Veterans Memorial) or that the NPS has designated as forums for certain first amendment activities, namely, demonstrations and the distribution of message-bearing items, see
In dispensing “the strong medicine of overbreadth invalidation,” Virginia v. Hicks, 539 U.S. 113, 120 (2003) (cleaned up), the district judge relied primarily upon our decision in Boardley v. U.S. Dep‘t of Interior, 615 F.3d 508 (2010), which she deemed sufficiently analogous to “provide[] considerable support for Mr. Price‘s argument.” 514 F. Supp. 3d at 190. The district judge did not, however, specifically wrestle with the “proportionality aspect of [the] overbreadth doctrine,” Hicks, 539 U.S. at 122 n.3; that is, despite the vast areas of NPS land that are not public forums, her “opinion contains no ‘comparing’ of valid and invalid applications whatever,” id., to demonstrate that the overbreadth is “substantial not only in an absolute sense, but also relative to the scope of the law‘s plainly legitimate applications,” id. at 120 (cleaned up).
Having concluded that the permit-and-fee requirements are facially unconstitutional, the district judge granted Price‘s request for declaratory relief and issued a nationwide injunction barring enforcement of the permit-and-fee requirements.
II. Analysis
“[W]e review de novo the district court‘s ruling on the motion for judgment on the pleadings.” Nat‘l Ass‘n of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009). The Government does not dispute that Price
A. The Applicability of Forum Analysis
Filmmaking undoubtedly is protected by the First Amendment. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (“[T]he creation and dissemination of information are speech within the meaning of the First Amendment.“). This uncontroverted fact, however, merely launches our inquiry, for “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799 (1985). Because “the Government, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated, the Court has adopted a forum analysis” to determine the legality of restrictions upon speech on Government property. Id. at 800 (cleaned up).
For the purposes of this analysis, Government property is generally divided into three categories: traditional public forums, designated public forums, and nonpublic forums.
A traditional public forum is property that has “time out of mind” been used to assemble and to communicate with others. Perry Educ. Ass‘n v. Perry Loc. Educators’ Ass‘n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). Examples include public streets and city parks. Id. Government regulation of speech on this type of property is subject to the same heightened scrutiny as applies to regulation of speech on property not controlled by the Government: strict scrutiny if the regulation is content-based, intermediate scrutiny if it is content-neutral. See id.
A designated public forum is “government property that has not traditionally been regarded as a public forum,” but the Government has “intentionally opened up for that purpose.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009). Examples include meeting facilities maintained by state universities and municipal theaters. Perry, 460 U.S. at 45. So long as the government chooses to “retain the open character” of the property, “it is bound by the same
A nonpublic forum is government property that “is not by tradition or designation a forum for public communication,” id.; examples are museums and offices. There, the Government has far more leeway to regulate speech: a restriction of speech in a nonpublic forum is “examined only for reasonableness,” United States v. Kokinda, 497 U.S. 720, 726 (1990). This means the restriction is constitutional if it is reasonable given “the purpose of the forum and all the surrounding circumstances,” Cornelius, 473 U.S. at 809, and is viewpoint neutral, id. at 806.
A hybrid case is the limited public forum, in which the Government has “create[d] a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Summum, 555 U.S. at 470. Those limitations, like restrictions in a nonpublic forum, need only be reasonable and viewpoint neutral. Good News Club v. Milford Central Sch., 533 U.S. 98, 106 (2001).
The district court‘s conclusion that the permit-and-fee requirements for filming on NPS property are unconstitutional is based upon its assumption that the speech-protective standards of a public forum apply to filmmaking just as they apply to other speech. This assumption flows from a simple, initially attractive syllogism:
- Major premise: All the details of forum analysis, including the speech-protective rules of a public forum, apply to any speech the First Amendment protects.
- Minor premise: The First Amendment protects filmmaking.
- Conclusion: All the details of forum analysis, including the speech-protective rules of a public forum, apply to filmmaking.
This syllogism also undergirds Price‘s argument in defense of the district court‘s decision.
The United States argues that the syllogism proceeds from a flawed major premise because not every activity the First Amendment protects as speech benefits from the strict, speech-protective rules of a public forum. Because a filmmaker does not seek to communicate with others at the location in which he or she films, the filmmaker does not use the location as a “forum.” Therefore, the United States argues, the district court‘s forum analysis was misplaced. Price counters that the district judge had it right: There is no basis to distinguish between filmmaking and other activities protected by the First Amendment.
We think the Government is correct. Based upon the historical underpinnings of forum analysis, the evolution of this analytical framework, and the cases in which the Supreme Court has applied it, we are convinced that it would be a category error to apply the speech-protective rules of a public forum to regulation of an activity that involves merely a noncommunicative step in the production of speech. Although that activity warrants solicitude under the First Amendment, that solicitude does not come from the speech-protective rules of a public forum. In reaching this conclusion we are buoyed by the Supreme Court‘s warning against extending the public forum doctrine “in a mechanical way” to contexts that meaningfully differ from those in which the doctrine has traditionally been applied. Arkansas Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 672-73 (1998).
We
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
307 U.S. 496, 515 (1939) (emphasis added). Similarly, in Schneider v. State of New Jersey, Town of Irvington, the Court had said that “the streets are natural and proper places for the dissemination of information and opinion.” 308 U.S. 147, 163 (1939) (emphasis added). Soon thereafter, in Cox v. State of New Hampshire, the Court summarized the relevant case law as follows:
As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.
312 U.S. 569, 574 (1941) (emphasis added).
In the 1970s, the Court began using the term “public forum” to denote government-controlled property on which the Government would have to tread far more lightly in regulating speech. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (describing municipal theaters as “public forums designed for and dedicated to expressive activities“); Greer v. Spock, 424 U.S. 828, 838 (1976) (declaring that “the business of a military installation” is “to train soldiers, not to provide a public forum“).
Perry was the culmination of this doctrinal evolution. There, the Court delineated the contours of forum analysis as we know it. It quoted the above passage from Hague and relied upon other proto-forum-analysis cases to announce that “[i]n places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.” 460 U.S. at 45 (emphasis added).
Two related commonalities run through the cases from Hague to Perry: the types of activities associated with public forums and the proffered justification for affording special protection to those activities in a public forum. As for the types of activities, the cases are concerned with assembly, the exchange of ideas to and among citizens, the discussion of public issues, the dissemination of information and opinion, and debate — all of which are communicative activities. It should come as no surprise, therefore, that the Court in Perry described the rule for a traditional public forum as follows: “In these quintessential
The emphasis on communicative activities makes perfect sense considering the second commonality in the foundational cases: basing the justification for heightened protection of communicative activities in traditional public forums on their having “immemorially been held in trust” for that activity, and on participation in that activity being a privilege the public has enjoyed “time out of mind.” Hague, 307 U.S. at 515. As explained by the most eloquent Professor Harry Kalven, Jr., this longstanding use of public forums provides the public with an “easement” on this type of property. The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (1965). It follows, as the Supreme Court has demonstrated, that to determine whether the highly speech-protective rules of a public forum apply to a given property, the question for a court is whether there is “a traditional right of access . . . comparable to that recognized for public streets and parks.” Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984).
Unsurprisingly, every single Supreme Court case from Perry onward in which the application of forum analysis was at issue involved communicative activity. See, e.g., Perry, 460 U.S. at 37 (interschool mail system); Taxpayers for Vincent, 466 U.S. at 789 (lampposts used to hang signs); Cornelius, 473 U.S. at 801 (access to government-created charity drive conducted in federal workplaces during working hours); Forbes, 523 U.S. at 666 (debate among political candidates broadcast on public television stations). This buttresses our conclusion that forum analysis applies only to communicative activities, not to activities that, even if generally protected by the First Amendment, are not communicative.
Though protected as speech under the First Amendment, filmmaking, like typing a manuscript, is not itself a communicative activity; it is merely a step in the creation of speech that will be communicated at some other time, usually in some other location. Creation of speech is not the type of activity for which streets and parks have been used “time out of mind,” and therefore it cannot be said that they have “immemorially been held in trust” for such activity. There is no historical right of access to government property in order to create speech.
Price argues our distinction between communicative activity and filmmaking contradicts the consensus of the courts of appeals: “Every circuit court to address the issue,” he says, “has held that the First Amendment protects the right to make audio and/or video recordings in public places.”
The cases Price cites do not establish a general right to create recordings in public places. Save for one, those cases deal with the filming of a public official (usually a police officer) performing public duties on public property. See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020); Fields v. City of Phila., 862 F.3d 353, 355-56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 687-88 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014); Alvarez, 679 F.3d at 595-97; Glik v. Cunniffe, 655 F.3d 78, 82-83 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).
Filming a public official performing public duties on public property implicates unique first amendment interests. “Gathering information about government
We understand these cases as standing for the proposition that it is unreasonable to issue a blanket prohibition against the recording of a public official performing public duties on public property, so long as the recording does not interfere with the performance of the official‘s duties. “Such peaceful recording of [the performance of a public duty] in a public space . . . is not reasonably subject to limitation.” Glik, 655 F.3d at 84. This helps explain why these cases make no effort to determine whether the location of the recording is a public forum: Because prohibiting the recording of a public official performing a public duty on public property is unreasonable, the specific nature of the public property is irrelevant.
Of the cases cited by Price, the only one that reaches beyond the recording of a public official on public property is Ness v. City of Bloomington, 11 F.4th 914 (8th Cir. 2021). The court in that case concluded that a city ordinance banning the video recording of a child without the consent of the child‘s guardian was unconstitutional as applied to a person who wished to record alleged violations of a permit issued to a youth center by the city. Id. at 918. As the court noted, however, the plaintiff‘s video recordings were “of matters of public controversy” for dissemination to the public, which the court likened to “news gathering.” Id. at 923. Even that case, therefore, does not suggest a general right to record on public property.1
Although the Ness court proceeded to apply traditional forum analysis in concluding that the ordinance was unconstitutional, id., its analysis does not resolve the key question here. After noting that “video recording is speech,” the court merely assumed forum analysis should apply; it did not grapple with the differences between communicative activity and video recordings. Id. As we have explained, extending traditional forum analysis in this manner ignores the analytical underpinnings of forum analysis.1
B. Reasonableness
Price asserts that the regulation of filmmaking is subject to heightened scrutiny when the filming takes place on NPS land considered a traditional public forum or on land designated by the NPS as a free speech area. But the key takeaway from the preceding analysis is that, with respect to noncommunicative first amendment activity such as filmmaking, the highly-protective rules of a traditional public forum are inapplicable. As a result, filmmaking is subject to the same degree of regulation in a traditional public forum
The upshot is that filmmaking on all NPS land is subject to the same “reasonableness” standard that applies to restrictions on first amendment activity in a nonpublic forum: The “restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum,” Good News Club, 533 U.S. at 106-07 (cleaned up).
It follows that Boardley (upon which the district judge and Price rely) has nothing to do with this case. That case dealt with the distribution of written materials, 615 F.3d at 512, a communicative activity to which the heightened speech-protective rules of a public forum undoubtedly apply. Here, by contrast, we must assess the permit-and-fee requirements under the aforementioned “reasonableness” standard.
As several of our sister circuits have recognized, “reasonableness” requires something more than the toothless “rational basis” test used to review the typical exercise of a state‘s police power. See NAACP v. City of Phila., 834 F.3d 435, 443-44 (3d Cir. 2016); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966-67 (9th Cir. 2002); Multimedia Pub. Co. of S.C. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159 (4th Cir. 1993). At the same time, “[r]easonableness is a relatively low bar,” NAACP, 834 F.3d at 443, so regulations subject to this standard are subject “must survive only a much more limited review” than are regulations subject to heightened (intermediate or strict) scrutiny, Int‘l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992). Moreover, a reasonable regulation “need not be the most reasonable or the only reasonable limitation,” Cornelius, 473 U.S. at 808. Indeed, “there is no requirement . . . ‘that the restriction be narrowly tailored’ to advance the government‘s interests.” Hodge v. Talkin, 799 F.3d 1145, 1164-65 (D.C. Cir. 2015) (quoting Cornelius, 473 U.S. at 809). Crucially, the “reasonableness” of any restriction “must be assessed in the light of the purpose of the forum and all the surrounding circumstances.” Cornelius, 473 U.S. at 806, 809. And, finally, “reasonableness” may be established by evidence in the record or even by a commonsense inference. See NAACP, 834 F.3d at 443-44 (summarizing relevant Supreme Court precedent).
No party argues (nor could they) that the permit-and-fee requirements discriminate based upon viewpoint. Therefore, we need assess only whether those requirements are reasonable.
The Government argues the permit-and-fee regime furthers two significant interests: (a) raising revenue to maintain and improve the parks; and (b) ensuring that filming does not harm federal lands or otherwise interfere with park visitors’ enjoyment of them. Price counters the revenue-raising justification, saying the district judge correctly concluded it runs afoul of the well-settled rule that the Government may not “impose a charge for the enjoyment of a right granted by the federal
Price further argues the permit requirement is unconstitutional because, insofar as it is justified as protecting park land, the distinction in the regulation between commercial and noncommercial filmmaking bears no relationship to that purported interest.
1. The fee requirement
We have no difficulty rejecting Price‘s contention that the location fee violates the Murdock rule. The fee is not an impermissible charge for engaging in constitutionally protected activity; it is reasonable extraction of a rent by the owner of a property. As the Eleventh Circuit has noted, “reasonableness, for purposes of forum analysis, includes a commercial component.” Atlanta J. & Const. v. City of Atlanta Dep‘t of Aviation, 322 F.3d 1298, 1309 (11th Cir. 2003). With respect to a nonpublic forum, “reasonable regulations may include profit-conscious fees for access for expressive conduct, in a manner similar to fees that would be charged if the forum was owned by a private party (i.e., a fee for an auditorium for a dance recital, or a fee for displaying advertisements in a newspaper).” Id. That is why a government agency may extract rent from a vendor that sells newspapers in a government-controlled airport or subway station. See id.; Jacobson v. City of Rapid City, 128 F.3d 660, 664 n.2 (8th Cir. 1997); Gannett Satellite Info. Network, Inc. v. Metropolitan Transp. Auth., 745 F.2d 767, 775 (2d Cir. 1984) (“If Gannett were to place its newsracks on privately owned business property it undoubtedly would have to pay rent to the owner of the property. The fact that the business property in question is owned by the MTA should confer no special benefit on Gannett.“).
Charging for commercial use of park land is no different. The Government has not singled out speech to charge a fee; as detailed above, it charges a fee for all types of commercial activity on land controlled by the NPS, which is consistent with the Congress‘s declaration “that it is the policy of the United States that the United States receive fair market value of the use of the public lands and their resources.”
We do not suggest that any fee would be constitutionally permissible or that any as-applied challenge to the fee charged by the NPS would fail. We simply reject the district judge‘s categorical conclusion that “any attempt to justify
2. The permit requirement
Protecting and properly managing park lands are undoubtedly significant governmental interests, see Boardley, 615 F.3d at 519. With regard to whether a small film crew with a small amount of equipment implicates those interests, we find illuminating the words of the NPS when it first adopted the regulation:
While it could be assumed that crews of three people or fewer have less potential for causing resource damage or interfering with the public‘s use or enjoyment of
the site, the agencies governed by this regulation manage and protect some of the nation‘s most treasured and valuable natural and cultural resources. In many circumstances it is important for land managers to know the specific time and location of certain activities so permit terms and conditions may be used to mitigate the possibility of resource damage or impact to visitors. For example, park units may have limited space, fragile resources, or [may] experience high visitation during a specific time period. Refuges may need to protect nesting areas of threatened or endangered species during certain times of the year.
Commercial Filming and Similar Projects and Still Photography Activities, 78 Fed. Reg. 52,087, 52,090 (Aug. 22, 2013).
Price gives us no basis for second guessing the factual underpinnings of this rationale for requiring filmmakers to get a permit. What remains is his question about underinclusiveness, for which he points to the disparate treatment of a small commercial production, for which a permit is required, and a larger non-commercial production, which is exempt from the permit requirement. Although Price raised the question to argue the permit requirement fails heightened scrutiny, his point is relevant, as far as it goes, even under the much less demanding standard of “reasonableness.”
An argument that a restriction on speech is underinclusive faces an uphill battle, even when the restriction is subject to heightened scrutiny. Indeed, “it is surprising at first glance that a regulation of speech should ever be found impermissibly underinclusive,” ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 956 (D.C. Cir. 1995) (cleaned up), for, as the Supreme Court reminds us, “the First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content discrimination’ limitation upon a State‘s prohibition of proscribable speech.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387 (1992). Thus, “an underinclusive . . . regulation that is otherwise valid must be found to be constitutional so long as it does not favor one side of an issue and its rationale is not undermined by its exemptions.” ISKCON, 61 F.3d 957.
There can be no serious argument that the permit requirement favors one side of any issue. Nor does the distinction between commercial and non-commercial filming undermine the NPS‘s rationale for requiring a permit. As the Government points out, it stands to reason that “an expansive operation that generated no income would be rare compared to the common occurrence of large-scale commercial filming.” It follows that a commercial film production is likely to involve more activities that are disruptive to park operations and are more likely to cause damage to park resources than does a non-commercial film production. Therefore, the distinction between commercial and non-commercial filming seems reasonably related to the Government‘s interests. While it may be that “these purposes would be more effectively and not so clumsily achieved” by drawing different distinctions, Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 297 (1984), that possibility does not make the line NPS has drawn unreasonable. Even if the question were a closer one, we would not have “the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.” Id. at 299.
As with the fee requirement, we have no occasion to foreclose the possibility of a successful as-applied challenge to the permit requirement. We hold only that, on the record before us, we cannot conclude the
3. A brief rejoinder regarding the “news-gathering” exception
Price argues that the special treatment the NPS regulations afford to “news-gathering activities” amounts to an impermissible content-based distinction. He further argues that the distinction in the regulations between “news-gathering activities” (exempt from the permit-and-fee requirements) and filming a “documentary” (subject to the permit-and-fee requirements,
Even if these arguments raised a real problem with a part of the regulations, they would not be grounds for facially invalidating the entire permit-and-fee regulation, much less the statute. In any event, the arguments are without merit. The favorable treatment of news-gathering is but an example of the unremarkable practice of the Congress “sometimes grant[ing] the press special privileges and immunities.” Associated Press v. F.C.C., 452 F.2d 1290, 1298 (D.C. Cir. 1971); see also Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 579 (1977) (holding a state may privilege the press by exempting it from a right-of-publicity tort). Indeed, the exemption and the definition of “news-gathering activities” in the regulations are modeled on the
The distinction between news-gathering and filming a documentary is just as benign as the exemption for news-gathering. To the extent that a documentary is not “news,” i.e., does not contain “information that is about current events or that would be of current interest to the public, gathered by news-media entities for dissemination to the public,”
III. Conclusion
To summarize, although filmmaking is protected by the First Amendment, the specific speech-protective rules of a public forum apply only to communicative activity. Consequently, regulations governing filmmaking on government-controlled property need only be “reasonable,” which the permit-and-fee requirements for commercial filmmaking on NPS land surely are. We therefore reverse the grant of Price‘s motion for judgment on the pleadings and the denial of the defendants’ motion for judgment on the pleadings; vacate the declaratory judgment and the permanent injunction entered by the district court; and remand the case to that court with instructions to deny Price‘s motion for judgment on the pleadings and to grant
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I am in complete agreement with Judge Ginsburg‘s analysis and join it fully, I write separately only to emphasize the limited reach of the court‘s holding. We conclude that the regulation of most non-communicative speech on government property is subject to “reasonableness” review. Maj. Op. at 2, 16–17. We need not—and do not—explain the full contours of what does and does not constitute “communicative speech.” Under Supreme Court precedent, “communicative” speech is that which “inten[ds] to convey a particularized message” in a manner that allows others to understand it. Cf. Spence v. State of Wash., 418 U.S. 405, 410–11 (1974); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984) (“a message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative“). After today, we will still apply heightened scrutiny to a wide variety of speech. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (finding “protected expression” as varied as the “painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll“). Price‘s filmmaking presents a paradigmatic example of non-communicative speech, which is itself an oxymoronic term. As Judge Ginsburg explains, it “is merely a step in the creation of speech.” Maj. Op. at 15 (emphasis added). Indeed, Price will still need to edit and show his film before “communicating” what he “inten[ds] to convey.” Spence, 418 U.S. at 410–11.
TATEL, Circuit Judge, dissenting: Federal law prohibits anyone from engaging in “commercial filming activities” in the national parks without first obtaining a permit and paying a fee.
I.
Under
Appellee Gordon Price, without first obtaining a permit or paying a fee, used a
II.
To evaluate a facial challenge like Price‘s, we must first determine whether the regulated activity is “speech” protected by the First Amendment. Boardley, 615 F.3d at 514 (internal quotation marks omitted). If so, we “identify the nature of the forum, because the extent to which the [g]overnment may limit access depends on whether the forum is public or nonpublic.” Id. (internal quotation marks omitted). Finally, we “assess whether the government‘s justifications for restricting speech in the relevant forum satisfy the requisite standard.” Id. (internal quotation marks omitted). As relevant here, restrictions on speech in traditional public forums like the National Mall and designated public forums like “free speech areas” within the national parks must, at minimum, be “narrowly tailored to serve a significant governmental interest” and “leave open ample alternatives for communication.” Id. at 515-16 (describing the standard of scrutiny applicable to “[c]ontent-neutral restrictions on the time, place, or manner of speech in a public forum“).
In this case, how we proceed at each step of our analysis is controlled by Boardley v. United States Department of Interior, in which our court held facially unconstitutional NPS regulations making it “unlawful to engage in expressive activities within any . . . national parks unless a park official first issue[d] a permit.” Id. at 511. At the outset, we observed that requiring a permit for “public expressions of views” unquestionably regulated “‘speech’ within the meaning of the First Amendment.” Id. at 512, 514. We then explained that the NPS regulations applied in “all . . . locations within the national parks,” including the “‘free speech areas’ . . . and other public forums within [the] . . . parks.” Id. at 515, 525. “[W]ithout deciding the forum status of every part of every national park,” id. at 521, we analyzed the NPS regulations as restrictions on speech in public forums, asking whether the permit requirement was narrowly tailored to achieve the government‘s substantial interests in protecting national park resources and facilities from damage, minimizing interference with park activities, and preserving peace and tranquility within the parks. Id. at 519–24. We concluded that the regulations were not narrowly tailored because they required permits for large groups, small groups, and individuals even though requiring permits for “individuals and small groups promote[d] the government‘s [interests] only marginally.” Id. at 522; see id. at 524 (“Because the means chosen are . . . substantially broader than necessary to achieve the government‘s interest[s], the NPS regulations are overbroad and not narrowly tailored.” (internal quotation marks and citation omitted)).
Moreover, like the permit requirement in Boardley, the Permit Regime at issue here targets speech in public forums. As the government concedes, the Permit Regime applies to all NPS lands, including both “areas that [undoubtedly] meet the definition of traditional public forums” as well as “‘free speech areas‘” that constitute “‘designated public forums.‘” Boardley, 615 F.3d at 515; see Appellant‘s Br. 41 (Permit Regime “appl[ies] on all NPS lands, including . . . areas that constitute public forums.“); see also
The government argues that because many national parks include nonpublic forums, we must employ the lower standard of scrutiny applicable to content-neutral restrictions on speech outside public forums. In Boardley, however, we rejected this precise argument. We recognized that “many national parks include areas—even large areas, such as a vast wilderness preserve—which never have been dedicated to free expression and public assembly, would be clearly incompatible with such use, and would therefore be classified as nonpublic forums.” Id. at 515. We also observed that, as in this case, the record lacked evidentiary submissions to “determine the forum status of the hundreds of national parks governed by the NPS regulations.” Id. Nevertheless, because the national parks’ public forums “[were] subject to the same permit requirement as all other locations within the . . . parks,” we analyzed the NPS regulations as restrictions on speech in public forums “without deciding the forum status of all 391 national parks.” Id.
The government makes much of the fact that Price‘s “own filming activity . . . occur[red] outside of any public forum.” Appellant‘s Br. 59. But the location of Price‘s filming activity is irrelevant because, as the Supreme Court has made clear, “in the area of freedom of expression[,] an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992).
At Boardley‘s third step, we assess whether the NPS‘s justifications for restricting speech in public forums satisfy the requisite standard of scrutiny. Boardley, 615 F.3d at 514. The government contends that the Permit Regime is content-neutral and, as such, need only be “‘narrowly tailored to serve a significant governmental interest’ and ‘leave open ample alternatives for communication.‘” Appellant‘s Br. 42 (quoting Boardley, 615 F.3d at 516). But even if the Permit Regime is content-neutral, it still fails to withstand scrutiny under Boardley‘s precise reasoning.
Like the NPS regulations in that case, the Permit Regime burdens substantially more speech than necessary to achieve the government‘s significant interests in protecting NPS resources and preventing interference with park visitors. See Boardley, 615 F.3d at 519 (finding significant governmental interests in protecting the national parks’ natural and cultural resources, protecting visitors, and avoiding interference with park activities). Because “commercial filming” includes any videography intended to “generat[e] income,”
The government argues that the Permit Regime, in addition to protecting NPS resources and park visitors from interference by filmmakers, advances a second significant governmental interest: “raising money.” Appellant‘s Br. 42. But this interest is a nonstarter because the government may not “impose a charge for the enjoyment of a right granted by the federal constitution.” Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943). Although the government may impose licensing fees to “defray the expenses of policing” activities guaranteed by the First Amendment, any such fees may not exceed the amount needed to cover administrative costs. Id. at 113–14; see Cox v. State of New Hampshire, 312 U.S. 569, 577 (1941) (permitting “the charge of a fee limited to” covering administrative costs). As the statute itself and the implementing regulations make clear, the Permit Regime‘s fee is “in addition” to
The government insists that the Permit Regime‘s fee does not impose a tax on constitutionally protected speech because it is part of a broader suite of NPS permit and fee requirements that “tax[] businesses generally.” Appellant‘s Br. 45 (internal quotation marks omitted); see Majority Op. at 20 (noting that the government “charges a fee for all types of commercial activity on land controlled by the NPS“). But the challenged Permit Regime applies only to “commercial filming activities or similar projects.”
Next, the government argues that it may tax commercial filming in its “proprietary capacity,” citing the Eleventh Circuit‘s statement in Atlanta Journal and Constitution v. Atlanta Department of Aviation that “when the [government] acts as a proprietor, reasonable regulations may include profit-conscious fees for access for expressive conduct.” Appellant‘s Br. 48 (first quote); id. at 47 (second quote) (quoting Atlanta Journal, 322 F.3d 1298, 1309 (11th Cir. 2003)); see Majority Op. at 20–21. But as the Eleventh Circuit made clear, that rule applies only to fees charged for “distribution space in a non-public forum.” Atlanta Journal, 322 F.3d at 1312 (emphasis added). The Permit Regime levies fees in public forums. And unlike the rental fees at issue in the government‘s cited cases, the Permit Regime‘s fee applies to individuals who neither reserve “fixed locations” on government property nor use such locations “to sell, exhibit or distribute materials.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 643 (1981) (internal quotation marks omitted); see Jacobsen v. City of Rapid City, 128 F.3d 660, 664 n.2 (8th Cir. 1997) (explaining that the government may charge “rent . . . as landlord” when a “newspaper leases public property for commercial use“). Accordingly, the government‘s desire to tax commercial filming does not qualify as a “significant governmental interest.” Boardley, 615 F.3d at 516.
Because the Permit Regime‘s restrictions on speech in public forums are not narrowly tailored to serve a significant governmental interest, they cannot withstand constitutional scrutiny.
III.
My colleagues opt to forego any application of heightened scrutiny to the government‘s speech restrictions and instead uphold the Permit Regime under a “reasonableness” standard. Majority Op. at 17–18. Specifically, they hold that filming is not the “type of activity” to which forum analysis applies and, thus, filming in public forums “is subject to the same ‘reasonableness’ standard that applies to restrictions on [F]irst [A]mendment activity in . . . nonpublic forum[s].” Majority Op. at 18 (“For [filming], these areas are effectively nonpublic forums.“).
The application of forum analysis to expressive pursuits, however, is not reserved for particular types of First Amendment expression. Far from parsing different
True, as my colleagues observe, “earlier [Supreme Court] cases” describe public forums as “natural and proper places” for “assembly,” “discussion of public questions,” and “dissemination of information.” Majority Op. at 11–13 (internal quotation marks omitted). But this very same case law emphasizes the broad scope of protection afforded to speech in public forums, shielding against the abridgment of “the exercise of [one‘s] liberty of expression in [such] places,” not merely the abridgement of certain types of expression. Schneider v. New Jersey, Town of Irvington, 308 U.S. 147, 163 (1939); see also Perry, 460 U.S. at 45 (“[T]he rights of the state to limit expressive activity [in traditional public forums] are sharply circumscribed.” (emphasis added)). Professor Harry Kalven Jr.‘s conception of public forums as First Amendment “easement[s]” reinforces this point. See Majority Op. at 14. The venerable right protected by this “easement” is not merely the right to communicate in public forums. It is the right “to use the streets and parks for communication,” which a filmmaker does, regardless of where he later displays the film. Hague v. Committee for Industrial Organization, 307 U.S. 496, 515–16 (1939) (emphasis added). My colleagues reimagine the public forum to protect the stumping politician but not the silent photographer, to shield the shouting protester but not the note-taking reporter. These distinctions find no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of speech from public forums than it does to police which squirrels may enter a conservation easement.
More recently, several of our sister circuits have reiterated that forum analysis applies to all First Amendment expression, including filming. For example, the Seventh Circuit explained that forum analysis “addresses who has the right of access to government property” to engage in “expressive pursuits—whether that expressive pursuit is leafletting teachers, soliciting charitable donations, wearing political buttons at a polling place, or gathering information for news dissemination.” Evers, 994 F.3d at 611–12 (emphasis added). The First, Fifth, and Eighth Circuits, moreover, have applied forum analysis to filming just as they would to any other form of speech. See Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (applying “the level of scrutiny applicable” to “traditional public fora” because the filming activities occurred in a “public park“); Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (explaining that the government‘s right to restrict filming was “‘sharply circumscribed‘” because the filming occurred in “the oldest city park in the United States and the apotheosis of a public forum“); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017) (explaining that filming from a public sidewalk is “‘subject to reasonable time, place, and manner restrictions‘” that must be “‘narrowly tailored to serve a significant governmental interest‘“).
Although some of these cases arose in the context of recording public officials, Majority Op. at 15, the principles they state are much broader, describing “the First Amendment‘s protection of the broader right to film” in public places. Turner, 848 F.3d at 689; see id. at 690 (“Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.‘“); Wasden, 878 F.3d at 1203–04 (citing cases involving the filming of police officers as examples of the “‘First Amendment right to film matters of public interest‘“); Western Watersheds Project v. Michael, 869 F.3d 1189, 1196 (10th Cir. 2017) (“An individual who photographs animals . . . is creating speech in the same manner as an individual who records a police encounter.“). Yet the court cites not a single case that applies a “reasonableness” standard of scrutiny to a government restriction on filming in public places. By stripping filming of the protections afforded to expression in public forums, the court puts us in direct conflict with other circuits and leaves important expressive activities unprotected in places where the First Amendment‘s guarantee of free speech should be at its apex.
IV.
Under today‘s sweeping holding, regulation of filming on government property is no longer subject to heightened scrutiny, even when the filming occurs in traditional public forums where “the rights of the [government] to limit expressive activity are sharply circumscribed” or designated public forums that the government “has opened for use by the public as a place for expressive activity.” Perry, 460 U.S. at 45; see Majority Op. at 2. Before standing outside Yosemite National Park‘s visitor center using a cell phone to record commentary on our national parks that will air on an advertisement-supported YouTube channel, an individual must obtain a permit and pay a fee. Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they have any inkling that they might later make money from this footage on social media. And when the filming is spontaneous, these individuals will be criminally liable and face up to six months in prison even though they could not possibly have obtained a permit ahead of time. See