Filming On Federal Property
The United States Court of Appeals for the District of Columbia applied a “reasonableness” standard to uphold fee and licensing requirements for filming on federal property.
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.
Price sued after the criminal charges were dismissed.
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.
Senior Circuit Judge Tatel dissented
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 his 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 18 U.S.C. § 1865; 36 C.F.R. §§ 1.3, 5.5(a). By stripping public forum protection from filming, my colleagues—for the very first time—disaggregate speech creation and dissemination, thus degrading First Amendment protection for filming, photography, and other activities essential to free expression in today’s world. See Wasden, 878 F.3d at 1203 (disaggregating video creation from dissemination “defies common sense”); Fields, 862 F.3d at 358 (similar); Alvarez, 679 F.3d at 595–96 (similar). I respectfully dissent.
(Mike Frisch)