Finished films are protected by the First Amendment, but the act of filming them on government property is not an inherently protected activity, according to a ruling issued Tuesday by the U.S. Court of Appeals for the District of Columbia Circuit.
Gordie Price made his movie in 2018 Crawford Road on National Park Service land without obtaining prior permission or paying a fee. After his first assessment, the NPS cited him with a misdemeanor punishable by up to six months in prison and a fine. The citation was withdrawn, but Davis Wright Tremaine’s First Amendment expert Robert Korn-Revere took an interest in the matter and Price sued the United States Attorney General (then William Barr) in December 2019 along with the Department of Justice. Interior and national park. officers. Service, questioning the constitutionality of the rule. Thus, Price’s independent film about a supposedly haunted section of Virginia’s Colonial National Historic Park became the center of a legal battle over the protection of filming on government property.
In a major victory for the filmmakers, US District Judge Colleen Kolar-Kotel sided with Price in January 2021, declaring the plan unconstitutional. He issued an ordinance prohibiting applications for licenses and fees for commercial filming and “prosecute and impose criminal liability”.
The statute in question (read here) only required permission for commercial filming (generally exempts newsgathering and non-commercial projects) and was considered by Kollar-Kotelly to be a substantial restriction on Price’s First Amendment rights.
“Aten. Price’s filming in these parks constitutes a form of expressive expression protected by the First Amendment,” he wrote in the opinion, adding that “the filming must also meet the First Amendment’s free speech protections. Finding the opposite would artificially close an integral part of the expressive process of cinema.
The government appealed, and on Tuesday, the DC Circuit issued its 2-1 ruling overturning the decision.
“We consider the regulation of filming on government-controlled property to be subject only to a ‘reasonable’ standard, even when filming takes place in a public forum. “As the permit requirements and fees are reasonable, we reverse the district court order,” wrote Senior District Judge Douglas H. Ginsburg.
Ginsburg considers that special protection extends only to “communicative” activities in a public forum, such as “assembly, exchange of ideas with and among citizens, discussion of public issues, dissemination of information and opinions, and debate”. Furthermore, she concludes that not all government property is a public forum, nor is all activity protected by the communicative First Amendment.
“[W]”We are convinced that it would be a category mistake to apply the speech protection rules of the public forum to regulate an activity that involves only a non-communicative step in the production of speech,” Ginsburg wrote.
“Although protected as discourse by the First Amendment, cinema, like typing, is not itself a communicative activity; It is just one step in creating a speech that will be communicated at another time, usually elsewhere,” writes Ginsburg. “There is no historical right of access to public property to create speech.”
In summary, Ginsburg writes: “[T]The main conclusion of the foregoing analysis is that, with respect to non-communicative First Amendment activities such as film production, the highly protective rules of the traditional public forum are inapplicable. … The result is that filming on all NPS lands is subject to the same “reasonable” standard that applies to First Amendment restrictions on activity in a non-public forum.”
Ginsburg points out that reasonableness is a low standard and, by default, the goals of the NPS fee and permit scheme (to increase revenue and protect parks) are reasonable.
District Judge Karen Lecraft Henderson wrote a brief concurring opinion that highlighted the “limited scope” of the decision. “We conclude that the regulation of most non-communicative speech on public property is subject to a ‘reasonableness’ review,” he wrote. We do not need – and will not – explain the full contours of what constitutes and does not constitute ‘communicative discourse’.
In a blunt disagreement, District Judge David S. Tettel criticizes the decision to focus on the standard of reasonableness. “My colleagues are reinventing the public forum to protect the disruptive politician but not the silent photographer, to cover the screaming protester but not the reporter taking notes,” writes Tutel. “These distinctions have no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of discourse from public forums than to watch squirrels enter a conservation easement.”
He argues that the ruling overturns precedent that struck down similar restrictions as too broad and antithetical to basic First Amendment principles. “[T]”This Court today maintains these limitations of our Court’s precedent and is not bound by the precedent of our sister circuits,” Tatel wrote. “Because the permit and fee requirements criminalize more speech than is necessary to advance the government’s stated interests, they violate the First Amendment.”
Tatel cites a 2010 decision edge v. United States Department of the Interior. “Like the NPS regulations in this case, the permit regime burdens speech far more than is necessary to achieve the important government interests of protecting NPS resources and avoiding interference with park visitors,” Tatel wrote. It argues that as the regulations define “commercial filming” as “any moving image, electronic, magnetic, digital or other recording of a moving image made by a person, company or other entity for a market audience for the purpose of generate income”, the facial The limitation is not narrow enough. Designed to withstand scrutiny. (Ginsburg argued edge (Irrelevant because it referred to “the dissemination of written material”, which is a communicative activity.)
“[T]“This permissions regime applies to an unusual range of people, from large-scale filming operations, to small documentary crews, to people shooting short videos on their phones and then monetizing that content on social media platforms. social,” Tatel wrote. . . “Even a park visitor who records a five-minute video on their phone, intends to post it on YouTube and earn advertising revenue, must obtain permission and pay a fee. While large commercial film projects may “involve crew operators, film subjects and sustainable operations” that deplete park resources and annoy visitors… the government gives no reason to believe that individuals and small groups are “significantly involved” . [these] interests.”
The court reversed Kolar-Kotel, overturned the declaratory judgment and permanent injunction, and ordered the lower court to dismiss Price’s motion to condemn the pleadings and grant Defendant’s motion.
in a brief statement the hollywood reporter Tuesday price and Crawford Road Co-producer James Person said, “We are disappointed with the decision and are considering our options.”
If Price decides to continue the fight, the next step will be a petition to the US Supreme Court. Given some of the issues Tuttel raises in his dissent, including his view that the ruling puts the DC Circuit at odds with other appellate courts, it seems that modern technology has created yet another free speech issue ripe for the Court’s consideration.
Or, as Tuttel puts it: “Before standing outside the Yosemite National Park Visitor Center, using a cell phone to record commentary about our national parks broadcast on an advertising YouTube channel, one must obtain a permit and pay a fee. rate. . Before filming a protest on the National Mall, tourists must obtain permission and pay a fee if they intend to monetize the footage later on social media. And when filming is spontaneous, these individuals face criminal charges and up to six months in prison, even if they did not obtain prior authorization. …By removing public forum protections from filming, my colleagues, for the first time, separate the creation and dissemination of speech, thereby diminishing First Amendment protections for filming, photography, and other activities essential to free speech in the real world.
Source: Hollywood Reporter
Camila Luna is a writer at Gossipify, where she covers the latest movies and television series. With a passion for all things entertainment, Camila brings her unique perspective to her writing and offers readers an inside look at the industry. Camila is a graduate from the University of California, Los Angeles (UCLA) with a degree in English and is also a avid movie watcher.
