Federal Court Holds National Parks Service Film Permitting Rule Unconstitutional

The NPPA has helped to strike down some permitting requirements in national parks for videographers that they hope to extend to photographers. I republished their press release below about the case (which you also find here), but as with anything legal, you should consult a lawyer before relying on statements even though this is a recognized professional organization.

I remember the first time I took photos in a national park I was concerned about the various permitting requirements and I also seriously doubted that the requirements were legally enforceable, so it looks like I might have been right. Hopefully, the NPPA can take this further in the future. You can read the full case here and the press release below.

NPPA is celebrating a victory for videographers after a federal judge struck down a portion of the Department of Interior film permit requirements on Friday. The judge ruled that the “commercial filming” permit requirements violate the First Amendment and enjoined their enforcement. The National Press Photographers Association, as a part of its partnership with  the First Look Media Works’ Press Freedom Defense Fund, drafted and filed an amicus brief in the case, which was joined by nine other organizations. The ruling overturns commercial film permit requirements in the National Park Service, the Bureau of Land Management and the U.S. Fish and Wildlife Service.

In her ruling, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia declared that the statute and enacting regulations that require those engaged in “commercial filming” to obtain permits and pay certain fees are unconstitutional. The court also found that the permit rules restrict speech in public forums, including the many National Park locations that are already considered traditional public forums such as the National Mall. The court found that the rules were content-based restrictions on speech, subject to strict scrutiny. Likewise, she found, the regulations and underlying reasons offered by the government—namely obtaining a “fair market” payment on top of any administrative costs—do not meet that scrutiny. “The government may not impose a charge for the enjoyment of a right granted by the federal constitution, including the First Amendment right to free expression.” Judge Kollar-Kotelly wrote.

“The case is a great victory for photographers and the right to record in public places,” NPPA Executive Director Akili-Casundria Ramsess said.  In the regulations that were overturned, the government defines “commercial” broadly, as being “for a market audience with the intent of generating income.” Although “representatives of the news media” were already exempted in the statute, the question of who qualifies as a representative of the news media is not well defined, and in an era where more and more journalists are independent, NPPA believed the definition was a threat to freelance visual journalists as well.

Price’s attorney, Robert Corn-Revere also praised the decision. “This case started when the Park Service tried to criminally cite Gordon Price for unobtrusively making a film in a public park,” he said. “But Gordon fought for his rights and prevailed.  The court’s decision reaffirms that the act of filmmaking is protected by the First Amendment, and that the government cannot condition this right with arbitrary permit and fee requirements.” Price, an independent filmmaker from Virginia filmed portions of his low-budget feature film at the Yorktown Battlefield in the Colonial National Historical Park. After the film premiered and garnered some attention, the National Park Service issued him a citation for failing to obtain a commercial permit. When Price’s attorney challenged the constitutionality of the permitting statute, NPS dropped the charges, but expressed an intent to continue enforcing the permit requirements in the future.

The regulations required a permit for “all commercial filming.” The requirement was regardless of the size of the camera or crew, and irrespective of the disruptiveness of the filming activity. For more than a decade, NPPA has advocated against park permit requirements based on anything other than the level of disruption, and has fought against charges for filming that are based on whether or not a work will generate a profit. In 2007, then NPPA-president Tony Overman testified in Congress against the enactment of the now-overturned rules. NPPA warned against adopting arbitrary laws aimed at the photography itself and urged Congress to focus its regulations on activities that would impact the park, including damage to resources or interference with public visitors. NPPA stated back then that the rules would have a negative effect on independent journalists and filmmakers. As NPPA outlined in 2007 and again in its amicus brief in this case, the vague and overbroad definition of “commercial” equates the impact of a large-scale Hollywood production to that of a single photographer with a single camera operating in an open public area. In her analysis of the law, Judge Kollar-Kotelly noted NPPA’s amicus brief and the fact that the NPS intent of protecting the resources of the park system had no relationship to what happens after a film is created.

NPPA recommendations for videographers
Going forward, NPPA’s attorneys recommend that for now, as a practical matter, videographers who are filming projects on Department of Interior land, including land in the National Parks Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service carry (and present to authorities if needed) a copy of the judge’s January 22nd order, a copy of which is available here. It may take a while for all areas impacted by the rule to become aware of the injunction, but the parks are required to comply with it. The ruling had no impact on still photography regulations, which are less onerous, but which nonetheless are being looked at by NPPA’s lawyers.

The plaintiff in Price v. Barr was represented by Robert Corn-Revere and Ronald London of Davis Wright Tremaine, LLP.  NPPA and First Look Media Works’ amicus brief was drafted by Alicia Wagner Calzada and Mickey H. Osterreicher with support from Mark I. Bailen of Baker & Hostetler, LLP, Thomas Maddrey of ASMP and Sean Fitzgerald from NANPA. Joining in the brief were the American Society of Media Photographers, the American Photographic Artists, the Digital Media Licensing Association, Getty Images, the National Writers Union, the North American Nature Photography Association, The Radio Television Digital News Association, the Society of Professional Journalists and the White House News Photographers Association.

About NPPA:
Since its founding in 1946, the National Press Photographers Association (NPPA) has been the Voice of Visual Journalists. NPPA is a 501(c)(6) non-profit professional organization dedicated to the advancement of visual journalism, its creation, editing and distribution in all news media. NPPA encourages visual journalists to reflect the highest standards of quality and ethics in their professional performance, in their business practices and in their comportment. NPPA vigorously advocates for and protects the Constitutional rights of journalists as well as freedom of the press and speech in all its forms, especially as it relates to visual journalism. Its members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community.


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