National Park Service Can't Require Permits and Fees for Commercial Filming, Judge Rules

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

In a huge win for filmmakers, a D.C. federal judge has ruled that it's unconstitutional for the National Park Service to require permits or charge fees for commercial filming on its land.

Indie director Gordon Price in December 2019 sued the U.S. Attorney General (then William Barr) along with officials from the Department of the Interior and National Park Service challenging the constitutionality of the rule. In late 2018, two NPS officers issued Price a citation for filming without a permit in public areas of the Yorktown Battlefield in Colonial National Historical Park in Virginia. Price was shooting Crawford Road, a feature about an area in York County that is notorious for unsolved murders and is rumored to be haunted. He argued that what happened to him amounted to "content-based prior restraints" on free speech.

The statute at issue (read it here) didn't require a permit for non-commercial filmmaking, and there was a specific exemption for news-gathering. Violations could result in fines or up to six months in prison. (Price's citation was dropped after his lawyer argued it violated the First Amendment.)

Central to the dispute is whether the act of filming is protected speech or just the finished work, and whether the commercial nature of a project could qualify as a content-based restriction. Both parties moved for a judgment on the pleadings. On Friday, U.S. District Judge Colleen Kollar-Kotelly sided with Price.

"Mr. Price’s filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment," she writes in the opinion, adding "the creation of a film must also fall within the ambit of the First Amendment’s protection of freedom of expression. To find otherwise, would artificially disconnect an integral piece of the expressive process of filmmaking."

If Price's film was non-commercial, or featured only newsworthy information about current events, the permitting requirement wouldn't have applied. So, Kollar-Kotelly found, that amounts to a content-based restriction on his First Amendment rights.

While one of the goals of the statute, protecting natural resources, is a noble cause, Kollar-Kotelly finds no reason the threat posed by a man with a tripod making a commercial film is any different than the same person and equipment that's used for a non-commercial project. She also notes that in the decades since the statute passed technology has come a long way and "any individual may easily enter a national park and shoot a high-quality video at will using nothing more than a smart phone."

Kollar-Kotelly issued a declaration that the National Park Service's requirements "that those engaged in 'commercial filming' must obtain permits and pay fees are unconstitutional under the First Amendment," and she issued a permanent injunction enjoining the permit and fee requirements for commercial filming and "the prosecution and the imposition of criminal liability thereunder."

She writes, "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."

Price was represented by Robert Corn-Revere of Davis Wright Tremaine.