Indie Director Blasts Government's Argument That Filming Isn't Protected Speech

new-Colonial National Historical Park-Williamsburg, Virginia- Getty - H 2020

An independent filmmaker is challenging the ability of the government to charge fees for commercial shoots in national parks — and he's pushing back against its defense that the act of filming isn't protected by the First Amendment.

Gordon Price in December sued U.S. Attorney General William Barr, along with heads of the National Parks Service and Department of the Interior. He had been cited by NPS for filming without a permit in public areas of the Yorktown Battlefield in Virginia's Colonial National Historical Park for his feature Crawford Road, which centers on a stretch of road in the area that is rumored to be haunted and is home to multiple unsolved murders. The filmmaker argues that charging a fee for commercial shoots in national parks is effectively an unconstitutional prior restraint on free speech.

The government in June filed a motion to dismiss for lack of jurisdiction and for judgment on the pleadings. DOJ lawyers argue that Price's "nonspecific intention to film again at some point in the future is insufficient to establish standing to sue." Even if he did have standing, the government argues that the act of filming isn't actually protected speech, that it didn't happen in a public forum and that the NPS' permit and fee structure for commercial filming is content neutral. (Read the full motion here.)

On Wednesday, Price filed his own motion for judgment on the pleadings.

"Price has standing to challenge the Permit Regime's constitutionality because not only was it enforced against him, it is preventing him from engaging in specific filming at DOI-managed lands," writes attorney Robert Corn-Revere in the motion, which is posted in full below. Price had scouted locations at Yorktown and Manassas National Battlefields for a project that included a re-creation of the Saltville Massacre of Oct. 3, 1864, according to the complaint, but hasn't filmed there because of the citation he received for Crawford Road.

"The government has already enforced the Permit Regime against Price, requiring him to appear in federal court, retain counsel, and seek dismissal of the charges," writes Corn-Revere. "The government ultimately acquiesced, not on grounds the citation was improper or erroneous, but because it wanted to avoid Price's constitutional challenge. Notably, in dismissing, the criminal court expressly stated Price's remedy lies in a civil suit like this."

Corn-Revere argues that the government is trying to avoid the First Amendment by ignoring precedent that establishes there's no clear line between "the act of creating speech and the speech itself." He says the idea that filming is only facilitative of speech is "akin to arguing writing or typing can be freely regulated because they merely 'facilitate' speech and press rights."

He further argues that federal lands, specifically national parks, are traditional public forums but, even if they weren't, the permit structure is unconstitutional because it's inconsistent and unreasonable. 

"Under the Permit Regime, commercial and noncommercial productions, engaged in the same activity, having the same impact, are treated differently absent any justification other than that Congress views noncommercial entities as not having 'profits' worth siphoning," writes Corn-Revere. "The First Amendment does not allow the government to raise revenue by taxing the exercise of constitutional rights, or charging fees in excess of costs of administering a legitimate regulation that governs speech."

Also on Wednesday, 10 media organizations including Getty Images, the National Press Photographers Association and the Society of Professional Journalists filed an amicus brief in support of Price.

"Amici are unaware of any court that has adopted the Government’s position that the act of filming is not protected speech, or that filming is merely 'facilitative' of speech. And the government fails to cite to one," states the brief. "The Supreme Court has repeatedly held that the creation of speech is explicitly protected by the First Amendment. These protections encompass a range of conduct related to the gathering of information — including photography."

The organizations also argue that NPS allowed members of the media and the general public to create videos from the exact location where Price filmed his project. 

"The government opened the park up for those 'approved' individuals to engage in expressive activity without restriction but charged Mr. Price with a crime for doing the same," they argue. "Amici do not dispute that the National Park Service can charge admission fees for members of the public, including photographers and filmmakers, who seek to enter NPS parks and engage in expressive conduct. However, the government cannot require permits and impose hefty financial barriers targeted at those who plan to take photographs or engage in other expressive activities, based solely on the content of the film or the identity of the speaker."