Filmmaker Sues Feds Over "Unconstitutional" Fees to Shoot in National Parks

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A Virginia-based independent filmmaker says it's unconstitutional for the government to charge fees for commercial shoots in national parks, according to a lawsuit filed Monday in D.C. federal court.

Gordon Price is suing U.S. Attorney General William Barr, Secretary of the Interior David Bernhardt and Deputy Director of the National Park Service David Vela. In late 2018, two NPS officers issued Price a violation notice for filming without a permit in public areas of the Yorktown Battlefield in Colonial National Historical Park in Virginia for Crawford Road, a feature about an area in York County that is home to unsolved murders and is rumored to be haunted. The government dropped its criminal case (more on that below), but now Price is moving his fight to civil court.

The statute says the Secretaries of Agriculture and the Interior shall require a permit and "establish a reasonable fee for commercial filming activities or similar projects on Federal lands" and, according to the complaint, violations are criminal offenses. Still, photos don't require fees if they're taken in areas the public is generally allowed, but can in other locations or if models or props are used. News-gathering generally doesn't require a permit. Price argues the statute is facially unconstitutional because it targets First Amendment activity and these distinctions amount to "content-based prior restraints." 

"Its focus on the commercial nature of filming is not designed to serve any government interest in conservation or resource management, but to provide the government what it calls a 'fair return' for use of lands for commercial filming and certain still photography," writes attorney Robert Corn-Revere in the complaint, which is posted in full below.

Price argues the law is faulty for several reasons, including that Imposing a prior restraint on free speech is "the essence of censorship," the permit system is akin to press licensing and the First Amendment doesn't allow the government to make money by taxing "expressive activities."

In his case, Price claims the feds backed down to avoid an unfavorable finding. "When Mr. Price challenged the statute and rules (and the citation issued him) under the First Amendment, the government moved to dismiss to avoid a court ruling on the law’s constitutionality," writes Corn-Revere. "Given the law’s criminal enforceability, it has a speech-chilling effect on those to whom it may apply, and is operating to impede Mr. Price’s future productions. As such, the government cannot be allowed to avoid review under the First Amendment."

Price argues the permitting and fee process is overbroad and restricts expressive activity that's deemed commercial even if it doesn't impact the federal lands any more than a news report or still photo shoot would. He is asserting a host of First Amendment-related claims and is asking the court for a declaration that the requirements are unconstitutional under the First and Fifth Amendments and an injunction barring the practices.