Well, this is a strange one, but given how things have been going the last few years, maybe not so much. The D.C. Circuit Court has ruled that First Amendment rights no longer apply to filmmaking, sort of. At least, not in National Parks and not if you intend to make even a single penny out of the resulting footage – even if just posting to your own social media.
In 2018, independent filmmaker Gordon Price filmed some scenes in Colonial National Historical Park, Virginia, for his film, Crawford Road. After premiering the film at nearby restaurants, the National Park Service issued him with citations for “commercial filming” in a national park without permits. Several trips to various courts later and the D.C. Circuit Court has ruled 2-1 that any intent to make any money at all from content made on NPS land – even from a single YouTube ad – means you need to pay commercial fees before filming.
There was seemingly no problem until Price premiered his film Crawford Road at restaurants in Newport News, Virginia. It’s a film about a reportedly haunted stretch of road in Virginia and the location of a number of unsolved murders. Price filmed scenes for the film in Colonial National Historical Park, which is administered by the National Park Service. He did not obtain a permit or pay any fees beforehand. But after premiering the film, park rangers issued him with a citation because he hadn’t obtained permission for “commercial filming” in a national park. Price immediately cancelled further screenings and in the face of criminal charges, sought legal advice. NPS did drop the prosecution but not before First Amendment lawyers got involved.
Although the prosecution was dropped, Price and his lawyers filed a lawsuit against the US Government alleging that the permit and fees system violates First Amendment rights. In January 2021, the U.S. District Court in DC agreed with him. It didn’t necessarily state that the concept of fees and permits for commercial filming were unconstitutional, just that the rules as they stand right now are. They came to the conclusion that:
For the reasons set forth in this Memorandum Opinion, the Court DENIES Defendants’ Motion for Judgment on the Pleadings. See ECF No. 18. In turn, the Court GRANTS Mr. Price’s Cross-Motion for Judgment on the Pleadings. See ECF No. 25. Accordingly, the Court will issue a declaratory judgment stating that the requirements in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 34 of 35 35 36 C.F.R. § 5.5 that those engaged in “commercial filming” must obtain permits and pay fees are unconstitutional under the First Amendment.
The Court will also enter a permanent injunction enjoining the permit and fee requirements for commercial filming in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and enjoining prosecution and the imposition of criminal liability thereunder. In issuing this injunction, the Court observes that a more targeted permitting regime for commercial filming, which is more closely connected to the threat posed by large groups and heavy filming equipment, may pass constitutional muster in the future.
Which makes sense. Big Hollywood movie needs to shut down half the park for a day, week, whatever? Then yeah, that’s a big deal that disrupts the park’s operation. Permits and fees in advance make sense in this case and this is generally the scenario that most of us would believe the system applies to. But one or two people just walking around doing their thing, not getting in the way of anybody with a smartphone or mirrorless camera on a gimbal?
The recent reversal of the ruling by the D.C. Circuit Court in a 2-1 split means that yes, pretty much any creative activity on NPS land that ultimately derives the creator of any form of revenue requires a commercial permit. And if you don’t have one, even if all you’re doing is shooting a vacation video, if you upload it to YouTube and monetise it, you’re potentially facing criminal charges and jail time.
The lone dissenting judge in the case, Judge David S. Tatel noted that “the Permit Regime applies to an extraordinarily broad group of people, ranging from large-scale filming operations, to small documentary film crews, to individuals who take short videos on their phones and later monetize this content on social media platforms”. He went on to clarify some of the negative implications of the court’s decision:
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 obtaineda permit ahead of time.
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.
Want to vlog your next trip to the Everglades looking for gators or to document the extent of invasive species that have made it their home for your YouTube channel? Nope, not if your channel’s monetised. Well, not unless you went and paid the commercial fee before knowing if you even had anything worth sharing publicly. Not to mention limiting the location potential for the massive amount of US-Based landscape photography channels that have popped up on YouTube over the last couple of years.
The ruling flies in the face of decades of First Amendment doctrine that considers all steps in the filmmaking process to be protected expressive academy. I can’t imagine that this is the last we’ll see on this topic. You can read more about the case and its history on the FIRE website, read the District Court ruling here and see the previous Circuit Court ruling here.