First Amendment: Speech
Price v. Garland
D.C. Circuit Holds that Filming in Public Forums Is Subject to Lower Level of First Amendment Protection Than Expressive Activities.
“Wherever the title of streets and parks may rest,” Justice Roberts wrote almost a century ago, “they have immemorially been held in trust for the use of the public . . . for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”1×1. Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.); see also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (1965) (describing Justice Roberts’s dictum as carrying the “aura of a large democratic principle” that “[w]hen the citizen goes to the street, he is exercising an immemorial right of a free man, a kind of First-Amendment easement”). Today, the citizens who assemble in these public forums often carry cell phones with the capacity to capture video recordings that can later be disseminated and monetized on social media.2×2. See Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 341 (2011) (“In modern America, cell phone ownership is on its way to becoming universal, and virtually every cell phone has digital image capacity.”). The rise of cell phone cameras and social media has bolstered public discourse by enabling citizens to play a key information-sharing role in society: exposing police violence3×3. Nicol Turner Lee, Where Would Racial Progress in Policing Be Without Camera Phones?, Brookings: FixGov (June 5, 2020), https://www.brookings.edu/blog/fixgov/2020/06/05/where-would-racial-progress-in-policing-be-without-camera-phones [https://perma.cc/4YGG-JGUG]. and sharing impactful footage from protests.4×4. See, e.g., Christina Maxouris, More than a Dozen Video Clips Were Played During Kyle Rittenhouse’s Trial Last Week. Here’s What They Showed, CNN (Nov. 8, 2021, 12:18 PM), https://www.cnn.com/2021/11/07/us/kyle-rittenhouse-trial-what-video-evidence-shows/index.html [https://perma.cc/PGM4-4DA9]. Recently, in Price v. Garland,5×5. 45 F.4th 1059 (D.C. Cir. 2022). the D.C. Circuit held that regulation of filmmaking on government-controlled property (including public forums) need survive only a “reasonableness” inquiry,6×6. Id. at 1064. because filmmaking is “merely a noncommunicative step in the production of speech.”7×7. Id. at 1068. Accordingly, the court upheld a Department of the Interior permit-and-fee regime on commercial filming.8×8. Id. at 1064. Regardless of the opinion’s doctrinal fit, it upholds a permit-and-fee regime that unnecessarily limits the ability of activists and citizen-journalists to conduct spontaneous low-impact filming “with the intent of generating income” on government property,9×9. Id. (quoting 43 C.F.R. § 5.12 (2020)). thereby reducing valuable public discourse. Policymakers should amend the statute regulating commercial filming on federal land to protect the public discourse made possible by the rise of cell phones and social media.
In 2017, part-time independent filmmaker Gordon Price began filming a feature, entitled Crawford Road, about “a stretch of road in York County, Virginia, that has long been the subject of rumors of hauntings and was the location of unsolved murders.”10×10. Price v. Barr, 514 F. Supp. 3d 171, 179 (D.D.C. 2021). Price filmed some scenes within the Yorkfield Battlefield in the Colonial National Historical Park, which is administered by the National Park Service (NPS).11×11. Id. Price filmed on NPS land open to the general public using a camera, tripod, and microphone.12×12. Id. At its largest, the crew included four people.13×13. Id. The film premiered to an audience of around 250 people in a restaurant in Newport News, Virginia, in 2018.14×14. Id. Two months later, two NPS officers located Price at work and issued him a violation notice15×15. United States District Court Violation Notice at 1, United States v. Price, No. 19-po-180 (E.D. Va. Nov. 1, 2019), ECF No. 1. for failing to obtain a permit in order to conduct commercial filming on NPS land in accordance with 36 C.F.R. § 5.5(a).16×16. Price, 514 F. Supp. 3d at 179; 36 C.F.R. § 5.5(a) (2020) (“Commercial filming and still photography activities are subject to the provisions of 43 CFR part 5, subpart A.”); see also 43 C.F.R. §§ 5.1–.2, 5.8 (2020) (requiring a permit, location fee, and cost-recovery charge for commercial filming, but exempting newsgathering by news-media entities from the regulation). Under the permit-and-fee regime, any person who wishes to film with the “intent of generating income” must obtain a permit in advance and pay a fee — except for news-media entities, which fall under a categorical exemption from this requirement.17×17. 43 C.F.R. § 5.12 (2020). Violation of certain NPS regulations, like the commercial-filming regulations, is punishable by up to six months in prison, a fine, or both.18×18. 18 U.S.C. § 1865(a).
Price filed a motion to dismiss the charge in the Eastern District of Virginia.19×19. See Price, 514 F. Supp. 3d at 179. He argued that the statute authorizing the permit-and-fee regime, 54 U.S.C. § 100905, was unconstitutional, placing a content-based prior restraint on speech.20×20. See id. The government, maintaining that the permit-and-fee scheme was constitutional, moved to dismiss the charge against Price, stating that “the government does not believe that the interests of justice are served by pursuing this prosecution.”21×21. Motion to Dismiss Violation Notice ¶ 6, United States v. Price, No. 19-po-180 (E.D. Va. Nov. 1, 2019), ECF No. 19. Thereafter, the district court dismissed the criminal case against Price but advised Price that he could potentially bring his constitutional claims in a civil case.22×22. Order at 4, Price, No. 19-po-180, ECF No. 23.
Price then filed a civil complaint against several federal officials in the District Court for the District of Columbia to challenge the constitutionality of the statute authorizing this permit-and-fee regime and its implementing regulations under the First and Fifth Amendments.23×23. Complaint for Declaratory and Injunctive Relief ¶¶ 1–8, Price, 514 F. Supp. 3d 171 (No. 19-cv-03672), ECF No. 1. Price sought both declaratory and injunctive relief.24×24. Id. at 25. On cross-motions for judgment on the pleadings, the district court denied the government’s motion and granted Price’s, holding that the statute and regulations governing the commercial-filmmaking permit-and-fee scheme imposed a content-based restriction on expressive speech in public forums that failed to withstand heightened scrutiny.25×25. Price, 514 F. Supp. 3d at 181, 187. The district court granted declaratory relief and issued a nationwide injunction barring enforcement of the permit-and-fee scheme.26×26. Id. at 196–97.
The D.C. Circuit reversed and remanded.27×27. Price, 45 F.4th at 1075–76. Writing for the panel, Judge Ginsburg28×28. Judge Henderson joined the opinion. held that regulation of commercial filming on government property is subject only to a “reasonableness” standard — even when the commercial filming is conducted in a public forum — and that the permit-and-fee requirements were indeed reasonable.29×29. Price, 45 F.4th at 1064.
Judge Ginsburg began by critiquing the district court’s public forum analysis.30×30. See id. at 1068. Modern public forum analysis, as set forth in Perry Education Ass’n v. Perry Local Educators’ Ass’n,31×31. 460 U.S. 37 (1983). divides government property into three categories: traditional public forums, designated public forums, and nonpublic forums.32×32. Price, 45 F.4th at 1067. In traditional public forums — like parks and public streets — and designated public forums — like municipal theaters and state-university meeting areas — speech restrictions are suspect and subject to heightened scrutiny.33×33. Id. at 1067–68. However, in nonpublic forums — like government offices and museums — speech restrictions are subject only to a “reasonableness” inquiry.34×34. Id. at 1068 (quoting United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality opinion)).
The court noted that every Supreme Court case flowing from Perry in which public forum analysis was at issue involved a communicative activity, like the use of an interschool mailing system or the use of lampposts to hang signs.35×35. Id. at 1070. The panel concluded that since the recording of film is a noncommunicative activity, as it does not reach its intended audience while the filmmaker is at the location, the highly protective rules of a traditional public forum are inapplicable.36×36. Id. In a footnote, the court pointed out that forum analysis “may well apply to live streaming, which is communicative activity, albeit to people who are not necessarily located in the forum in which the streaming is conducted.”37×37. Id. at 1071 n.***.
Next, the court concluded that noncommunicative First Amendment activity like filmmaking is “subject to the same degree of regulation in a traditional public forum as it would be in a nonpublic forum.”38×38. Id. at 1071–72. Therefore, the regulations of noncommunicative First Amendment activity must meet a “reasonableness” standard.39×39. Id. at 1072. A speech restriction in a nonpublic forum must be reasonable given “the purpose of the forum and all the surrounding circumstances” and must be viewpoint neutral.40×40. Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809 (1985)). Since all parties agreed that the permit-and-fee requirements were viewpoint neutral, the panel assessed only whether the requirements were reasonable.41×41. Id. They were, because they furthered two asserted government interests — namely, raising revenue to maintain public lands and ensuring filming does not harm public lands or the visitor experience.42×42. Id. at 1072–75.
Finally, the court rejected Price’s argument that the permit-and-fee regime was invalid because it was underinclusive, given that it does not include noncommercial filming.43×43. Id. at 1074. The panel found that the exclusion of noncommercial filming from the regulation did not undermine the government’s rationale for the regulation, because a filming operation that generates income is likely to be larger than a filming operation that does not.44×44. Id.
Judge Henderson wrote a brief concurrence to emphasize the narrowness of the panel’s holding: “After today, we will still apply heightened scrutiny to a wide variety of speech.”45×45. Id. at 1076 (Henderson, J., concurring) (suggesting that music, paintings, and poems shared on government property constitute communicative activities).
Judge Tatel dissented, arguing that the panel’s decision to strip filmmaking of public forum protections, “for the very first time[,] disaggregate[s] speech creation and dissemination.”46×46. Id. at 1082 (Tatel, J., dissenting). He argued that Supreme Court precedent dealing with forum analysis does not call on judges to differentiate between different types of First Amendment expression, but rather instructs judges to focus on “the character of the property at issue.”47×47. Id. at 1081 (quoting Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 44 (1983)). Judge Tatel acknowledged, as the panel did, that Price’s past filming activity occurred outside of any public forum.48×48. Id. at 1078. However, he argued that “in the area of freedom of expression[,] an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.”49×49. Id. (alteration in original) (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992)). Judge Tatel concluded that filmmaking should be subject to public forum analysis and that the permit-and-fee requirements as written are unconstitutional because they “penalize far more speech than necessary to advance the government’s asserted interests.”50×50. Id. at 1076, 1078.
Regardless of the opinion’s doctrinal fit,51×51. The D.C. Circuit’s decision is perhaps unsurprising. The public forum doctrine is one key exception to a general understanding that the First Amendment grants citizens only negative rights rather than positive rights or affirmative claims to government resources. Frederick Schauer, Hohfeld’s First Amendment, 76 Geo. Wash. L. Rev. 914, 915–16 (2008) (“[E]xisting doctrine, with perhaps the one significant exception of the public forum doctrine, refuses to understand the First Amendment right to freedom of speech [as granting positive rights].” Id. at 916 (footnote omitted).). Given that the public forum doctrine provides a rare affirmative claim to the public, the D.C. Circuit was hesitant to extend that grant “in a mechanical way” to cover noncommunicative activities even when the purpose of such activities is to facilitate the production of speech. Price, 45 F.4th at 1068 (quoting Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672–73 (1998)). it upholds a permit-and-fee regime that unnecessarily limits the ability of activists and citizen-journalists to conduct spontaneous low-impact filming “with the intent of generating income” on government property,52×52. Price, 45 F.4th at 1064 (quoting 43 C.F.R. § 5.12 (2020)). thereby reducing valuable public discourse. The regime’s definition of “commercial filming” has been rendered unnecessarily broad by technological change and today criminalizes conduct well suited for a public forum without furthering governmental interests. In the social-media age, citizens known as “content creators”53×53. Andy Karuza, Make the Most of the Creator Economy, Forbes (July 18, 2022, 7:00 AM), https://www.forbes.com/sites/theyec/2022/07/18/make-the-most-of-the-creator-economy [https://perma.cc/7R3S-V4ZD]. regularly film videos on their cell phones with the intent of generating income.54×54. See, e.g., Yuanling Yuan & Josh Constine, SignalFire’s Creator Economy Market Map, SignalFire, https://signalfire.com/blog/creator-economy [https://perma.cc/YES6-BKT4] (noting that an estimated fifty million people worldwide work as creators). The fact that they may generate income from their videos, however, does not reduce the value of their speech.55×55. Commercial speech is zealously protected under the First Amendment. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011). The permitting regime threatens content creators with criminal punishment for recording spontaneous videos in public forums. This regime may chill the creation of videos important to public discourse, including witness-bearing and activist videos. Thus, policymakers should amend the statute authorizing the permit-and-fee regime to exempt all low-impact commercial filming.
As written, the statute authorizing the Park Service’s permit-and-fee regime and the implementing regulations are unnecessarily broad. The regulations define “commercial filming” as “film . . . or other recording of a moving image by a person . . . for a market audience with the intent of generating income.”56×56. 43 C.F.R. § 5.12 (2020). Under this definition, the government could prosecute an individual who filmed a short video on the National Mall and later monetized it on YouTube even though the filming did not place a strain on the Park Service’s resources, harm public land, or interfere with the visitor experience.57×57. See Price, 45 F.4th at 1079 (Tatel, J., dissenting); Price v. Barr, 514 F. Supp. 3d 171, 192 (D.D.C. 2021). A prosecution like this would have been unthinkable to the legislators who first enacted the statute authorizing the permit-and-fee regime. The statute was first enacted in 200058×58. Act of May 26, 2000, Pub. L. No. 106-206, 114 Stat. 314 (codified as amended at 54 U.S.C. § 100905) (“The Secretary . . . shall require a permit and shall establish a reasonable fee for commercial filming activities or similar projects on Federal lands administered by the Secretary.” Id. § 1(a).). — two years before cell phone cameras were introduced into the United States59×59. Kreimer, supra note 2, at 340. and five years before YouTube was introduced.60×60. Miguel Helft, With YouTube, Student Hits Jackpot Again, N.Y. Times (Oct. 12, 2006), https://www.nytimes.com/2006/10/12/technology/12tube.html [https://perma.cc/4Q2Y-REQC]. Back then, legislators were focused on regulating high-impact filming of major motion pictures like Star Wars.61×61. S. Rep. No. 106-67, at 3 (1999) (report on H.R. 154, 106th Cong. (1999)). Representative Joel Hefley of Colorado introduced H.R. 154 after prompting from a constituent. 146 Cong. Rec. H3480 (daily ed. May 22, 2000) (statement of Rep. Joel Hefley) (“This bill is the result of some real grass-roots interest. . . . [A] lady . . . contacted my office and wanted to know why Hollywood directors could film on Park Service land for free.”). Motion Picture Association of America CEO Jack Valenti testified in favor of the bill during a congressional hearing. Hearing on H.R. 15, H.R. 150, and H.R. 154 Before the Subcomm. on Nat’l Parks & Pub. Lands of the H. Comm. on Res., 106th Cong. 25 (1999) (“The movie industry is quite willing and ready to pay reasonable fees for filming . . . .”). Legislators could not have predicted that cheap filming technology would enable millions of Americans to film and monetize videos online as part of the creator economy. Currently, an estimated fifty million people worldwide work as creators who monetize their content by posting it on digital platforms like YouTube, Instagram, and TikTok.62×62. Yuan & Constine, supra note 54.
The commercial-filming permit-and-fee regime appears especially broad when compared to the still-photography permit-and-fee regime authorized by the same statute.63×63. 54 U.S.C. § 100905(c). The still-photography regime does not require permits but authorizes the Secretary of the Interior to require them for photography that burdens Park Service resources, threatens to harm public land, or interferes with the visitor experience because it “takes place at other locations where members of the public are generally not allowed, or . . . uses models or props.”64×64. Id. This laxer approach to regulation of still photography seems to reflect legislators’ understanding that, at the time, photography required far less equipment than commercial filming. Less equipment meant less impact on Park Service resources and less interference with the visitor experience. Now that commercial filming requires only a cell phone, the Park Service’s regulations should be adjusted to place limits on only commercial filming that is likely to burden Park Service resources, harm public land, or interfere with the visitor experience.
If this permit-and-fee regime is not amended, it could have a chilling effect on the filming and subsequent dissemination of videos important to public discourse,65×65. See, e.g., Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1649 (2013). such as witness-bearing videos. A witness-bearing video captures a public occurrence and exposes unjust conduct to the public. One need look no further than the witness-bearing video taken of the murder of George Floyd to understand the transformational impact of this type of video. The viral cell phone video that ignited an international protest movement and a new era of racial discourse was recorded by seventeen-year-old Darnella Frazier. Frazier captured footage of policeman Derek Chauvin kneeling on Floyd’s neck while Floyd repeatedly stated that he could not breathe.66×66. Rachel Treisman, Darnella Frazier, Teen Who Filmed Floyd’s Murder, Praised for Making Verdict Possible, NPR (Apr. 21, 2021, 11:15 AM), https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/21/989480867/darnella-frazier-teen-who-filmed-floyds-murder-praised-for-making-verdict-possib [https://perma.cc/43YK-B6N4]. Frazier’s video and her testimony ultimately helped secure the conviction of Chauvin and usher in a global racial reckoning.67×67. Id. Another example of important witness-bearing videos is footage taken by witnesses of the Kyle Rittenhouse shootings. The videos played a key role in Rittenhouse’s trial,68×68. Maxouris, supra note 4. which ended in acquittal on all counts.69×69. See Mark Guarino et al., Kyle Rittenhouse Acquitted on All Counts in Kenosha Shootings, Wash. Post (Nov. 19, 2021, 10:53 PM), https://www.washingtonpost.com/nation/2021/11/19/rittenhouse-verdict-live-updates [https://perma.cc/U4K4-GSWS].
The regime may also chill the recording of activist videos in public forums. An activist video features a speaker promoting a particular political message. An activist could be anyone from a local artist to a professional political organizer. The activist, for example, may film themselves performing spoken-word poetry about racial injustice on the steps of the Lincoln Memorial and later post that video footage on their ad-sponsored YouTube account. With each view, the activist will gain revenue; however, this does not decrease the societal value of the video. The activist’s video in this example would contribute to public discourse on race, encourage engagement with democratic processes, and advance the search for the truth.70×70. See Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 999 (2016) (describing rationales for the protection of speech and advocating that those rationales can apply equally to the protection of video recording). Forcing an activist like this to acquire a permit before conducting low-impact filming at the Lincoln Memorial discourages film projects like this and hampers public discourse.
Policymakers should amend the permit-and-fee regime’s authorizing statute to exempt low-impact filming that does not interfere with the common use of public forums. One way in which policymakers could do this is by exempting all filming conducted with a cell phone. However, some major motion pictures have remarkably been recorded on just a cell phone.71×71. For example, the 2018 thriller Unsane was recorded on an iPhone. Joe Morgenstern, “Unsane” Review: Who’s Running the Asylum?, Wall St. J. (Mar. 22, 2018, 12:57 PM), https://www.wsj.com/articles/unsane-review-whos-running-the-asylum-1521737854 [https://perma.cc/SF4X-AWWL]. The 2015 film Tangerine was also shot on an iPhone. Id. A better amendment would exempt all low-impact commercial filming unlikely to place an administrative burden on Park Service resources, harm public land, or interfere with the visitor experience. Policymakers could do this by amending the statute to read:
The Secretary shall require a permit and shall establish a reasonable fee for commercial filming only if the filming (1) requires film equipment beyond a handheld device and a tripod; (2) employs the use of actors or props; (3) requires a crew of more than two people; or (4) requires access to property not generally open to the public.
An amendment like this would ensure that citizens could freely record low-impact videos, including activist and witness-bearing videos, thus protecting the public discourse created by these videos through their dissemination on social media.
While the D.C. Circuit held in Price v. Garland that government regulations of the production of speech in public forums will be subject only to limited scrutiny by courts,72×72. Price, 45 F.4th at 1064. policymakers should aim to narrowly tailor regulations of speech production in public forums to serve compelling government interests. When regulations — like the commercial-filming regime at issue here — are written too broadly, they may chill the creation of speech and limit public discourse.73×73. See Kendrick, supra note 65, at 1649. While the government may not be under the same obligation to provide space for speech production in public forums as it is to provide space for speech dissemination,74×74. Price, 45 F.4th at 1070 (“Creation of speech is not the type of activity for which streets and parks have been used ‘time out of mind,’ and therefore it cannot be said that they have ‘immemorially been held in trust’ for such activity.” (quoting Hague v. CIO, 307 U.S. 496, 515 (1939))). society benefits when the government keeps public forums open to speech production.