Petition for Writ of Certiorari — Gordon M. Price, Petitioner v. Merrick B. Garland, Attorney General, et al.

Supreme Court briefJan 17, 2023

Ask Donna

What actually matters in this document.

Text

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____

Argued January 31, 2022 Decided August 23, 2022

No. 21-5073

GORDON M. PRICE,

APPELLEE

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES OF

AMERICA, ET AL.,

APPELLANTS

____

Appeal from the United States District Court

For the District of Columbia

(No. 1:19-cv-03672)

____

Joseph F. Busa, Attorney, U.S. Department of

Justice, argued the cause for appellants. With him on

the briefs were Brian M Boynton, Acting Assistant

Attorney General, Michael S. Raab and Joshua M.

Salzman, Attorneys.

Robert Corn-Revere argued the cause for

appellee. With him on the brief was Patrick J. Curran

Jr.

Glenn E. Roper was on the brief for amici

curiae Pacific Legal Foundation and Anthony Barilla

in support of appellee.

Mickey H. Osterreicher and Alicia Wagner

Calzada were on the brief for amici curiae National

Press Photographers Association, et al. in support of

appellee.

Before: HENDERSON and TATEL*, Circuit Judges,

and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit

Judge GINSBURG.

Concurring opinion filed by Circuit Judge

HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Senior Circuit Judge: Gordon Price is

an independent filmmaker. He filmed parts of a

feature film on land administered by the National

Park Service (NPS) without having obtained the

requisite permit and having paid the requisite fee.

The Government charged him with a misdemeanor

but later dismissed the charge. Price then sued for

declaratory and injunctive relief, arguing the permitand-fee requirements are facially unconstitutional

* Judge Tatel assumed senior status after this case was argued

and before the date of this opinion.

under the First Amendment to the Constitution of the

United States. The district court agreed with Price,

holding the permit-and-fee requirements do not

satisfy the heightened scrutiny applicable to

restrictions on speech in a public forum.

We hold that regulation of filmmaking on

government-controlled property is subject only to a

“reasonableness”

standard,

even

when

the

filmmaking is conducted in a public forum. Because

the permit-and-fee requirements are reasonable, we

reverse the order of the district court.

Background

Statutory and Regulatory Framework

By statute, the Secretary of the Interior must

“require a permit and . . . establish a reasonable fee

for commercial filming activities” on land

administered by the NPS. 54 U.S.C. § 100905(a)(1).

In keeping with this mandate, the implementing

regulations state that “[a]ll commercial filming

requires a permit,” and that the NPS “will require a

reasonable location fee. . . assess[ed] . . . in accordance

with a fee schedule . . . publish[ed] in the Federal

regulations go on to define “commercial filming” as

“the film, electronic, magnetic, digital, or other

recording of a moving image by a person, business, or

other entity for a market audience with the intent of

generating income.” Id. § 5.12. Although some news

gathering activities fit within this definition, the

regulations generally exempt news gathering from

these requirements. Id. § 5.4.

The regulations also specify that a permit will

be denied if, among other reasons, it is likely an

activity would: “(a) Cause resource damage; (b)

[u]nreasonably disrupt or conflict with the public’s

use and enjoyment of the site; (c) [p]ose health or

safety risks to the public; [or] (d) [r]esult in

unacceptable impacts or impairment to National Park

Service resources or values.” 43 C.F.R. § 5.5.

The location fee, which must be calculated to

“provide a fair return to the United States,” is to be

based upon “the number of days of the filming

activity,” “the size of the crew,” “the amount and type

of equipment present,” and any “other factors . . . the

Secretary considers necessary.”

54 U.S.C.

§ 100905(a)(1)-(2). In addition to the location fee, the

Secretary must recover “any costs incurred as a result

of filming activities.” Id. 100905(b). A person

convicted of engaging in commercial filming without

obtaining a permit or paying a fee faces a fine and up

to six months in prison. See 18 U.S.C. § 1865; 36

C.F.R. § 1.3, 5.5(a).

These regulations are consistent with others

that apply to various types of commercial activity

conducted on land administered by the NPS. For

instance, it is generally prohibited to “engag[e] in or

solicit[] any business in park areas, except in

accordance with the provisions of a permit, contract,

or other written agreement with the United States.”

36 C.F.R. § 5.3. Similarly, a concessionaire must

contract with the Government and pay a “franchise

fee.” 54 U.S.C. § 101913. Finally, a person who

wishes to provide services to visitors on NPS land

must obtain authorization and pay “a reasonable fee

for issuance of a commercial use authorization.” 54

U.S.C. § 101925(a)(2)(A).

All these regulations are consistent with and

implement the Congress’s declaration “that it is the

policy of the United States that the United States

receive fair market value of the use of the public lands

and their resources.” 43 U.S.C. § 1701(a)(9). They are

also consistent with the Congress’s delegation of

authority to “[t]he head of each agency” to “prescribe

regulations establishing the charge for a service or

thing of value provided by the agency,” 31 U.S.C.

§ 9701(b), because “[i]t is the sense of Congress that

each service or thing of value provided by an agency

. . . to a person . . . is to be self-sustaining to the extent

possible,” id. § 9701(a).

Facts

The following facts are taken from the district

court’s memorandum opinion. Plaintiff-Appellee

Gordon Price is a part-time independent filmmaker.

In 2018 he released Crawford Road, a film about a

stretch of road in York County, Virginia that was the

location of unsolved murders and long rumored to be

haunted. Price filmed scenes on the Yorktown

Battlefield in the Colonial National Historical Park,

land administered by the NPS, without first obtaining

a permit from the NPS and paying the fee. For those

scenes, Price used a camera, a tripod, and a

microphone. A crew of no more than four people were

present.

Crawford Road premiered in October 2018 to

an audience of around 250 people in Newport News,

Virginia. A couple of months later, NPS officers

issued Price a “violation notice” for failing to obtain a

commercial filming permit.

In the wake of the criminal charge, Price

canceled further screenings of Crawford Road and

removed from it all footage shot on NPS land.

Discussions about a distribution deal for the film

came to an abrupt halt. Price had also been doing

preliminary work on another film that would involve

filming on land administered by the NPS, but he

refrained from shooting this footage out of fear of

prosecution.

Appearing before the United States District

Court for the Eastern District of Virginia, Price moved

to dismiss the charge, on the ground that § 100905 and

its

implementing

regulations

are

facially

unconstitutional. Instead of litigating this question,

the Government dismissed the charge. Deprived of

jurisdiction to consider the merits of Price’s

constitutional challenge, which were raised only as a

defense to a criminal prosecution, the district judge

dismissed the case. The Government did not, however,

renounce its belief in the constitutionality of the

statute and the regulations, nor did it forswear

prosecution of Price for any future violation of the

permit-and fee-requirements.

In December 2019 Price pressed his

constitutional argument in a civil complaint filed in

the United States District Court for the District of

Columbia. Price sued several individuals in their

official capacities: the Attorney General of the United

States of America, the Secretary of the Department of

the Interior, and the Deputy Director Exercising the

Authority of Director of the NPS. Alleging that

§ 100905 and the regulations implementing it are

facially unconstitutional, Price sought declaratory and

injunctive relief.

The parties cross-moved for judgment on the

pleadings. The district court denied the defendants’

motion and granted Price’s.

In the memorandum opinion accompanying her

order, the district judge treated the permit-and feerequirements as content-based regulations of speech

and determined that they do not withstand heightened

(intermediate or strict) scrutiny. Price v. Barr, 514 F.

Supp. 3d 171, 187-93 (D.D.C. 2021). She therefore

concluded the requirements unconstitutionally restrict speech on land administered by the NPS that

“courts have already identified as traditional public

forums” (e.g., the National Mall and sidewalks outside

the Vietnam Veterans Memorial) or that the NPS has

designated as forums for certain first amendment

activities,

namely,

demonstrations

and

the

distribution of message-bearing items, see 36 C.F.R.

§§ 2.51¬2.52. 514 F. Supp. 3d at 187. Although Price

did not film on park land that is a public forum and

therefore had no basis to challenge the permit-and-fee

regime as applied to him, the district judge concluded

that the regime was unconstitutional on its face

because it “burdens substantially more speech than is

necessary to achieve the government’s substantial

interests.” Id. at 193 (cleaned up).

In dispensing “the strong medicine of

overbreadth invalidation,” Virginia v. Hicks, 539 U.S.

113, 120 (2003) (cleaned up), the district judge relied

primarily upon our decision in Boardley v. U.S. Dep’t

of Interior, 615 F.3d 508 (2010), which she deemed

sufficiently analogous to “provide[] considerable

support for Mr. Price’s argument.” 514 F. Supp. 3d at

190. The district judge did not, however, specifically

wrestle with the “proportionality aspect of [the]

overbreadth doctrine,” Hicks, 539 U.S. at 122 n.3; that

is, despite the vast areas of NPS land that are not

public forums, her “opinion contains no `comparing’ of

valid and invalid applications whatever,” id., to

demonstrate that the overbreadth is “substantial not

only in an absolute sense, but also relative to the scope

of the law’s plainly legitimate applications,” id. at 120

(cleaned up).

Having concluded that the permit-and-fee

requirements are facially unconstitutional, the district

judge granted Price’s request for declaratory relief and

issued a nationwide injunction barring enforcement of

the permit-and-fee requirements.

II.

Analysis

“[W]e review de novo the district court’s ruling

on the motion for judgment on the pleadings.” Nat’l

Ass ‘n of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009).

The Government does not dispute that Price has

standing to pursue his claims. That, of course, does not

relieve us of our obligation to determine whether we

have jurisdiction. To that end, we agree with the

district judge that Price “has presented a sufficiently

credible statement of his intention to conduct

commercial filming within a national park,” thereby

implicating a constitutional interest, 514 F. Supp. 3d

at 182 (cleaned up), and “has also established that his

proposed filmmaking creates a credible threat of

prosecution,” id. at 183 (cleaned up); see Woodhull

Freedom Found. v. United States, 948 F.3d 363, 370

(D.C. Cir. 2020). That the NPS has issued interim

guidance complying with the district court’s decision

certainly does not make the case moot because, as the

NPS has stated, it “intends to update regulations

addressing filming activities that are consistent with

the outcome of [this litigation].” NPS, Filming and

Still

Photography

Permits,

https://www.nps.goviaboutusinews/commercial-filmand-photo-permits.htm (Aug. 26, 2021). See W.

Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2607

(2022). (“Voluntary cessation does not moot a case

unless it is absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur”

(cleaned up)).

The Applicability of Forum Analysis

Filmmaking undoubtedly is protected by the

First Amendment. See Sorrell v. IMS Health Inc., 564

U.S. 552, 570 (2011) (“[T]he creation and

dissemination of information are speech within the

meaning of the First Amendment.”).

This

uncontroverted fact, however, merely launches our

inquiry, for “[n]othing in the Constitution requires the

Government freely to grant access to all who wish to

exercise their right to free speech on every type of

Government property.” Cornelius v. NAACP Legal Def

& Educ. Fund, Inc., 473 U.S. 788, 799 (1985). Because

“the Government, no less than a private owner of

property, has power to preserve the property under its

control for the use to which it is lawfully dedicated, the

Court has adopted a forum analysis” to determine the

legality of restrictions upon speech on Government

property. Id. at 800 (cleaned up).

For the purposes of this analysis, Government

property is generally divided into three categories:

traditional public forums, designated public forums,

and nonpublic forums.

A traditional public forum is property that has

“time out of mind” been used to assemble and to

communicate with others. Perry Educ. Ass’n v. Perry

Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting

Hague v. CIO, 307 U.S. 496, 515 (1939)). Examples

include public streets and city parks. Id. Government

regulation of speech on this type of property is subject

to the same heightened scrutiny as applies to

regulation of speech on property not controlled by the

Government: strict scrutiny if the regulation is

content-based, intermediate scrutiny if it is contentneutral. See id.

A designated public forum is “government

property that has not traditionally been regarded as a

public forum,” but the Government has “intentionally

opened up for that purpose.” Pleasant Grove City,

Utah v. Summum, 555 U.S. 460, 469 (2009). Examples

include meeting facilities maintained by state

universities and municipal theaters. Perry, 460 U.S.

at 45. So long as the government chooses to “retain the

open character” of the property, “it is bound by the

same standards as apply in a traditional public forum.”

Id. at 46.

A nonpublic forum is government property that

“is not by tradition or designation a forum for public

communication,” id.; examples are museums and

10a

offices. There, the Government has far more leeway to

regulate speech: a restriction of speech in a nonpublic

forum is “examined only for reasonableness,” United

States v. Kokinda, 497 U.S. 720, 726 (1990). This

means the restriction is constitutional if it is

reasonable given “the purpose of the forum and all the

surrounding circumstances,” Cornelius, 473 U.S. at

809, and is viewpoint neutral, id. at 806.

A hybrid case is the limited public forum, in

which the Government has “create[d] a forum that is

limited to use by certain groups or dedicated solely to

the discussion of certain subjects.” Summum, 555

U.S. at 470. Those limitations, like restrictions in a

nonpublic forum, need only be reasonable and

viewpoint neutral. Good News Club v. Milford

Central Sch., 533 U.S. 98, 106 (2001).

The district court’s conclusion that the permitand-fee requirements for filming on NPS property are

unconstitutional is based upon its assumption that the

speech-protective standards of a public forum apply to

filmmaking just as they apply to other speech. This

assumption flows from a simple, initially attractive

syllogism:



Major premise: All the details of forum

analysis, including the speech-protective

rules of a public forum, apply to any speech

the First Amendment protects.



Minor premise: The First Amendment

protects filmmaking.

11a



Conclusion: All the details of forum

analysis, including the speech-protective

rules of a public forum, apply to filmmaking.

This syllogism also undergirds Price’s argument in

defense of the district court’s decision.

The United States argues that the syllogism

proceeds from a flawed major premise because not

every activity the First Amendment protects as speech

benefits from the strict, speech-protective rules of a

public forum. Because a filmmaker does not seek to

communicate with others at the location in which he or

she films, the filmmaker does not use the location as a

“forum.” Therefore, the United States argues, the

district court’s forum analysis was misplaced. Price

counters that the district judge had it right: There is

no basis to distinguish between filmmaking and other

activities protected by the First Amendment.

We think the Government is correct. Based

upon the historical underpinnings of forum analysis,

the evolution of this analytical framework, and the

cases in which the Supreme Court has applied it, we

are convinced that it would be a category error to apply

the speech-protective rules of a public forum to

regulation of an activity that involves merely a noncommunicative step in the production of speech.

Although that activity warrants solicitude under the

First Amendment, that solicitude does not come from

the speech-protective rules of a public forum. In

reaching this conclusion we are buoyed by the

Supreme Court’s warning against extending the public

forum doctrine “in a mechanical way” to contexts that

meaningfully differ from those in which the doctrine

12a

has traditionally been applied.

Arkansas Educ.

Television Comm‘n v. Forbes, 523 U.S. 666, 672-73

(1998).

We begin by examining the history of forum

analysis and how the Supreme Court has described

and justified it. Modern forum analysis came to

fruition in the 1983 case of Perry Education Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, but its seed

had been planted decades earlier. Although the earlier

cases do not present a fully developed forum doctrine,

they are widely cited for their descriptions of the types

of government-controlled property that are subject to

special rules under the First Amendment. In Hague v.

CIO, for instance, the Court had stated:

Wherever the title of streets and parks may

rest, they have immemorially been held in

trust for the use of the public and, time out of

mind, have been used for purposes of

assembly, communicating thoughts between

citizens, and discussing public questions.

Such use of the streets and public places has,

from ancient times, been a part of the

privileges, immunities, rights, and liberties

of citizens.

307 U.S. 496, 515 (1939) (emphasis added). Similarly,

in Schneider v. State of New Jersey, Town of Irvington,

the Court had said that “the streets are natural and

proper places for the dissemination of information and

opinion.” 308 U.S. 147, 163 (1939) (emphasis added).

Soon thereafter, in Cox v. State of New Hampshire, the

Court summarized the relevant case law as follows:

13a

As regulation of the use of the streets for

parades and processions is a traditional

exercise of control by local government, the

question in a particular case is whether that

control is exerted so as not to deny or

unwarrantedly abridge the right of assembly

and the opportunities for the communication

of thought and the discussion of public

questions immemorially associated with

resort to public places.

312 U.S. 569, 574 (1941) (emphasis added).

In the 1970s, the Court began using the term

“public forum” to denote government-controlled

property on which the Government would have to

tread far more lightly in regulating speech. See

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 555 (1975) (describing municipal theaters as

“public forums designed for and dedicated to

expressive activities”); Greer v. Spock, 424 U.S. 828,

838 (1976) (declaring that “the business of a military

installation” is “to train soldiers, not to provide a public

forum”).

Perry was the culmination of this doctrinal

evolution. There, the Court delineated the contours of

forum analysis as we know it. It quoted the above

passage from Hague and relied upon other protoforum-analysis cases to announce that “[i]n places

which by long tradition or by government fiat have

been devoted to assembly and debate, the rights of the

state to limit expressive activity are sharply

circumscribed.” 460 U.S. at 45 (emphasis added).

14a

Two related commonalities run through the

cases from Hague to Perry: the types of activities

associated with public forums and the proffered

justification for affording special protection to those

activities in a public forum. As for the types of

activities, the cases are concerned with assembly, the

exchange of ideas to and among citizens, the discussion

of public issues, the dissemination of information and

opinion, and debate — all of which are communicative

activities. It should come as no surprise, therefore,

that the Court in Perry described the rule for a

traditional public forum as follows: “In these

quintessential public forums, the government may not

prohibit all communicative activity.” Id. (emphasis

added).

The emphasis on communicative activities

makes perfect sense considering the second

commonality in the foundational cases: basing the

justification

for

heightened

protection

communicative activities in traditional public forums

on their having “immemorially been held in trust” for

that activity, and on participation in that activity

being a privilege the public has enjoyed “time out of

mind.” Hague, 307 U.S. at 515. As explained by the

most eloquent Professor Harry Kalven, Jr., this

longstanding use of public forums provides the public

with an “easement” on this type of property. The

Concept of the Public Forum: Cox v. Louisiana, 1965

Sup. Ct. Rev. 1, 13 (1965). It follows, as the Supreme

Court has demonstrated, that to determine whether

the highly speech-protective rules of a public forum

apply to a given property, the question for a court is

whether there is “a traditional right of access . . . comparable to that recognized for public streets and

15a

parks.” Members of City Council of City of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984).

Unsurprisingly, every single Supreme Court

case from Perry onward in which the application of

forum analysis was at issue involved communicative

activity. See, e.g., Perry, 460 U.S. at 37 (interschool

mail system); Taxpayers for Vincent, 466 U.S. at 789

(lampposts used to hang signs); Cornelius, 473 U.S. at

801) (access to government-created charity drive

conducted in federal workplaces during working

hours); Forbes, 523 U.S. at 666 (1998) (debate among

political candidates broadcast on public television

stations). This buttresses our conclusion that forum

analysis applies only to communicative activities, not

to activities that, even if generally protected by the

First Amendment, are not communicative.

Though protected as speech under the First

Amendment, filmmaking, like typing a manuscript, is

not itself a communicative activity; it is merely a step

in the creation of speech that will be communicated at

some other time, usually in some other location.

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. There

is no historical right of access to government property

in order to create speech.

Price

argues

our

distinction

between

communicative activity and filmmaking contradicts

the consensus of the courts of appeals: “Every circuit

court to address the issue,” he says, “has held that the

16a

First Amendment protects the right to make audio

and/or video recordings in public places.”

The cases Price cites do not establish a general

right to create recordings in public places. Save for

one, those cases deal with the filming of a public official

(usually a police officer) performing public duties on

public property. See Project Veritas Action Fund v.

Rollins, 982 F.3d 813, 832 (1st Cir. 2020); Fields v. City

of Phila., 862 F.3d 353, 355-56 (3d Cir. 2017); Turner

v. Driver, 848 F.3d 678, 687-88 (5th Cir. 2017); Gericke

v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014); Alvarez, 679

F.3d at 595-97; Glik v. Cunniffe, 655 F.3d 78, 82-83

(1st Cir. 2011); Smith v. City of Cumming, 212 F.3d

1332, 1333 (11th Cir. 2000).

Filming a public official performing public

duties on public property implicates unique first

amendment interests. “Gathering information about

government officials in a form that can readily be

disseminated to others serves a cardinal First

Amendment interest in protecting and promoting ‘the

free discussion of governmental affairs.’” Glik, 655

F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218

(1966)). It should come as no surprise, therefore, that

these cases do not speak of a sweeping right to record

in public, but of a narrower right “to gather

information about what public officials do on public

property.” Smith, 212 F.3d at 1333.

We understand these cases as standing for the

proposition that it is unreasonable to issue a blanket

prohibition against the recording of a public official

performing public duties on public property, so long as

the recording does not interfere with the performance

17a

of the official’s duties. “Such peaceful recording of [the

performance of a public duty] in a public space . . . is

not reasonably subject to limitation.” Glik, 655 F.3d at

84. This helps explain why these cases make no effort

to determine whether the location of the recording is a

public forum: Because prohibiting the recording of a

public official performing a public duty on public

property is unreasonable, the specific nature of the

public property is irrelevant.

Of the cases cited by Price, the only one that

reaches beyond the recording of a public official on

public property is Ness v. City of Bloomington, 11

F.4th 914 (8th Cir. 2021). The court in that case

concluded that a city ordinance banning the video

recording of a child without the consent of the child’s

guardian was unconstitutional as applied to a person

who wished to record alleged violations of a permit

issued to a youth center by the city. Id. at 918. As the

court noted, however, the plaintiff’s video recordings

were “of matters of public controversy” for

dissemination to the public, which the court likened to

“news gathering.” Id. at 923. Even that case,

therefore, does not suggest a general right to record on

public property.*

Although the Ness court proceeded to apply

traditional forum analysis in concluding that the

ordinance was unconstitutional, id., its analysis does

* The same goes for John K MacIver Institute for Public Policy,

Inc. v. Evers, 994 F.3d 602 (7th Cir. 2021), invoked by our

dissenting colleague as support for his contrary position. That

case, which does not even deal with filming, holds merely that

forum analysis applies to “gathering information for news

dissemination.” Id. at 612 (emphasis added).

18a

not resolve the key question here. After noting that

“video recording is speech,” the court merely assumed

forum analysis should apply; it did not grapple with

the differences between communicative activity and

video recordings. Id. As we have explained, extending

traditional forum analysis in this manner ignores the

analytical underpinnings of forum analysis.*

Reasonableness

Price asserts that the regulation of filmmaking

is subject to heightened scrutiny when the filming

takes place on NPS land considered a traditional

public forum or on land designated by the NPS as a

free speech area. But the key takeaway from the

preceding analysis is that, with respect to

noncommunicative first amendment activity such as

filmmaking, the highly-protective rules of a traditional

public forum are inapplicable. As a result, filmmaking

is subject to the same degree of regulation in a

traditional public forum as it would be in a nonpublic

forum. The same surely applies to filmmaking in the

designated free speech areas the district judge

identified as other NPS land in which heightened

scrutiny ought to apply. 514 F. Supp. 3d at 187. Those

areas are limited public forums, which the

Government

has

opened

specifically

for

“demonstrations” and the sale or distribution of

message-bearing items, see 36 C.F.R. § 2.52-2.53, but

Our conclusion about the applicability of forum analysis to

filmmaking is based upon the difference between communicative

activity and steps in the creation of speech. 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.

19a

not for noncommunicative first amendment activity

such as filmmaking. For that type of activity, these

areas are effectively nonpublic forums.

The upshot is that filmmaking on all NPS land

is subject to the same “reasonableness” standard that

applies to restrictions on first amendment activity in a

nonpublic forum: The “restriction must not

discriminate against speech on the basis of viewpoint,

and the restriction must be reasonable in light of the

purpose served by the forum,” Good News Club, 533

U.S. at 106-07 (cleaned up).

It follows that Boardley (upon which the district

judge and Price rely) has nothing to do with this case.

That case dealt with the distribution of written

materials, 615 F.3d at 512, a communicative activity

to which the heightened speech-protective rules of a

public forum undoubtedly apply. Here, by contrast, we

must assess the permit-and-fee requirements under

the aforementioned “reasonableness” standard.

As several of our sister circuits have recognized,

“reasonableness” requires something more than the

toothless “rational basis” test used to review the

typical exercise of a state’s police power. See NAACP

v. City of Phila., 834 F.3d 435, 443-44 (3d Cir. 2016);

Sammartano v. First Judicial Dist. Court, 303 F.3d

959, 966-67 (9th Cir. 2002); Multimedia Pub. Co. of

S.C. v. Greenville–Spartanburg Airport Dist., 991 F.2d

154, 159 (4th Cir. 1993).

At the same time,

“[r]easonableness is a relatively low bar,” NAACP, 834

F.3d at 443, so regulations subject to this standard are

subject “must survive only a much more limited

review” than are regulations subject to heightened

20a

(intermediate or strict) scrutiny, Int’l Soc. for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992).

Moreover, a reasonable regulation “need not be the

most reasonable or the only reasonable limitation,”

Cornelius, 473 U.S. at 808. Indeed, “there is no

requirement . . . ‘that the restriction be narrowly

tailored’ to advance the government’s interests.”

Hodge v. Talkin, 799 F.3d 1145, 1164-65 (D.C. Cir.

2015) (quoting Cornelius, 473 U.S. at 809). Crucially,

the “reasonableness” of any restriction “must be

assessed in the light of the purpose of the forum and

all the surrounding circumstances.” Cornelius, 473

U.S. at 806, 809. And, finally, “reasonableness” may

be established by evidence in the record or even by a

commonsense inference. See NAACP, 834 F.3d at 44344 (summarizing relevant Supreme Court precedent).

No party argues (nor could they) that the

permit-and-fee requirements discriminate based upon

viewpoint. Therefore, we need assess only whether

those requirements are reasonable.

The Government argues the permit-and-fee

regime furthers two significant interests: (a) raising

revenue to maintain and improve the parks; and (b)

ensuring that filming does not harm federal lands or

otherwise interfere with park visitors’ enjoyment of

them. Price counters the revenue-raising justification,

saying the district judge correctly concluded it runs

afoul of the well-settled rule that the Government may

not “impose a charge for the enjoyment of a right

granted by the federal constitution,” Murdock v.

Pennsylvania, 319 U.S. 105, 113 (1943).

21a

Price further argues the permit requirement is

unconstitutional because, insofar as it is justified as

protecting park land, the distinction in the regulation

between commercial and noncommercial filmmaking

bears no relationship to that purported interest.

The fee requirement

We have no difficulty rejecting Price’s

contention that the location fee violates the Murdock

rule. The fee is not an impermissible charge for

engaging in constitutionally protected activity; it is

reasonable extraction of a rent by the owner of a

property.

As the Eleventh Circuit has noted,

“reasonableness, for purposes of forum analysis,

includes a commercial component.” Atlanta J. &

Const. v. City of Atlanta Dep’t of Aviation, 322 F.3d

1298, 1309 (11th Cir. 2003). With respect to a

nonpublic forum, “reasonable regulations may include

profit-conscious fees for access for expressive conduct,

in a manner similar to fees that would be charged if

the forum was owned by a private party (i.e., a fee for

an auditorium for a dance recital, or a fee for

displaying advertisements in a newspaper).” Id. That

is why a government agency may extract rent from a

vendor that sells newspapers in a governmentcontrolled airport or subway station. See id.; Jacobson

v. City of Rapid City, 128 F.3d 660, 664 n.2 (8th Cir.

1997); Gannett Satellite Info. Network, Inc. v.

Metropolitan Transp. Auth., 745 F.2d 767, 775 (2d Cir.

1984) (“If Gannett were to place its news-racks on

privately owned business property it undoubtedly

would have to pay rent to the owner of the property.

The fact that the business property in question is

22a

owned by the MTA should confer no special benefit on

Gannett.”).

Charging for commercial use of park land is no

different. The Government has not singled out speech

to charge a fee; as detailed above, it charges a fee for

all types of commercial activity on land controlled by

the NPS, which is consistent with the Congress’s

declaration “that it is the policy of the United States

that the United States receive fair market value of the

use of the public lands and their resources.” 43 U.S.C.

§ 1701(a)(9). The fee requirement merely puts a

commercial filmmaker on the same footing as any

other person who uses park land for a commercial

purpose, such as a concessionaire. Just as the

Government may charge the concessionaire a rental

fee, so too may it charge the commercial filmmaker a

usage fee.

We do not suggest that any fee would be

constitutionally permissible or that any as-applied

challenge to the fee charged by the NPS would fail. We

simply reject the district judge’s categorical conclusion

that “any attempt to justify § 100905’s permitting

regime on the basis of a governmental need to raise

revenue is a dead end,” 514 F. Supp. 3d at 190, and

conclude that on the present record, there is no basis

to say the fee requirement is unreasonable. Which

brings us to the permit requirement.

The permit requirement

Protecting and properly managing park lands

are undoubtedly significant governmental interests,

see Boardley, 615 F.3d at 519. With regard to whether

a small film crew with a small amount of equipment

23a

implicates those interests, we find illuminating the

words of the NPS when it first adopted the regulation:

While it could be assumed that crews of three

people or fewer have less potential for

causing resource damage or interfering with

the public’s use or enjoyment of the site, the

agencies governed by this regulation manage

and protect some of the nation’s most

treasured and valuable natural and cultural

resources. In many circumstances it is

important for land managers to know the

specific time and location of certain activities

so permit terms and conditions may be used

to mitigate the possibility of resource

damage or impact to visitors. For example,

park units may have limited space, fragile

resources, or [may] experience high

visitation during a specific time period.

Refuges may need to protect nesting areas of

threatened or endangered species during

certain times of the year.

Commercial Filming and Similar Projects and Still

Photography Activities, 78 Fed. Reg. 52,087, 52,090

(Aug. 22, 2013).

Price gives us no basis for second guessing the

factual underpinnings of this rationale for requiring

filmmakers to get a permit. What remains is his

question about under-inclusiveness, for which he

points to the disparate treatment of a small

commercial production, for which a permit is required,

and a larger non-commercial production, which is

exempt from the permit requirement. Although Price

24a

raised the question to argue the permit requirement

fails heightened scrutiny, his point is relevant, as far

as it goes, even under the much less demanding

standard of “reasonableness.”

An argument that a restriction on speech is

underinclusive faces an uphill battle, even when the

restriction is subject to heightened scrutiny. Indeed,

“it is surprising at first glance that a regulation of

speech should ever be found impermissibly

underinclusive,” ISKCON of Potomac, Inc. v. Kennedy,

61 F.3d 949, 956 (D.C. Cir. 1995) (cleaned up), for, as

the Supreme Court reminds us, “the First Amendment

imposes not an ‘underinclusiveness’ limitation but a

‘content discrimination’ limitation upon a State’s

prohibition of proscribable speech.” R.A.V. v. City of

St. Paul, Minn., 505 U.S. 377, 387 (1992). Thus, “an

underinclusive . . . regulation that is otherwise valid

must be found to be constitutional so long as it does not

favor one side of an issue and its rationale is not

undermined by its exemptions.” ISKCON, 61 F.3d

957.

There can be no serious argument that the

permit requirement favors one side of any issue. Nor

does the distinction between commercial and noncommercial filming undermine the NPS’s rationale for

requiring a permit. As the Government points out, it

stands to reason that “an expansive operation that

generated no income would be rare compared to the

common occurrence of large-scale commercial filming.”

It follows that a commercial film production is likely to

involve more activities that are disruptive to park

operations and are more likely to cause damage to park

resources than does a non-commercial film production.

25a

Therefore, the distinction between commercial and

non-commercial filming seems reasonably related to

the Government’s interests. While it may be that

“these purposes would be more effectively and not so

clumsily achieved” by drawing different distinctions,

Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288, 297 (1984), that possibility does not make the line

NPS has drawn unreasonable. Even if the question

were a closer one, we would not have “the competence

to judge how much protection of park lands is wise and

how that level of conservation is to be attained.” Id. at

299.

As with the fee requirement, we have no

occasion to foreclose the possibility of a successful asapplied challenge to the permit requirement. We hold

only that, on the record before us, we cannot conclude

the permit requirement is facially unreasonable.*

A brief rejoinder regarding the “newsgathering” exception

Price argues that the special treatment the NPS

regulations afford to “news-gathering activities”

amounts to an impermissible content-based

distinction. He further argues that the distinction in

the regulations between “news-gathering activities”

Because we dispose of the case on this ground, we have no

occasion to comment on (1) the propriety of the district court’s

issuing a nationwide injunction or (2) whether the district court’s

over-breadth analysis, which pays little attention to

proportionality, is consistent with our precedent and that of the

Supreme Court, see Hicks, 539 U.S. at 122; United States v.

Williams, 553 U.S. 285, 292-93 (2008); Ass’n of Priv. Sector

Colleges & Universities v. Duncan, 681 F.3d 427, 456-57 (D.C. Cir.

2012).

26a

(exempt from the permit-and-fee requirements) and

filming a “documentary” (subject to the permit-and-fee

requirements, 43 C.F.R. §§ 5.4, 5.12), is untenable and

arbitrary.

Even if these arguments raised a real problem

with a part of the regulations, they would not be

grounds for facially invalidating the entire permit-andfee regulation, much less the statute. In any event, the

arguments are without merit.

The favorable

treatment of news-gathering is but an example of the

unremarkable practice of the Congress “sometimes

grant[ing] the press special privileges and

immunities.” Associated Press v. F.C.C., 452 F.2d

1290, 1298 (D.C. Cir. 1971); see also Zacchini v.

Scripps-Howard Broad. Co., 433 U.S. 562, 579 (1977)

(holding a state may privilege the press by exempting

it from a right-of-publicity tort). Indeed, the exemption and the definition of “news-gathering

activities” in the regulations are modeled on the

Freedom of Information Act, which provides for a lower

fee to be charged “a representative of the news media,

5 U.S.C. § 552(a)(4)(A)(i). Considering the centrality of

the unimpeded functioning of the news media to the

health of the Republic, an exception for “newsgathering” is certainly reasonable.

The distinction between news-gathering and

filming a documentary is just as benign as the

exemption for news-gathering. To the extent that a

documentary is not “news,” i.e., does not contain

“information that is about current events or that would

be of current interest to the public, gathered by newsmedia entities for dissemination to the public,” 43

C.F.R. § 5.12, the distinction between filming a

27a

documentary and news-gathering is no different than

the distinction between filming a drama and newsgathering. And to the extent the documentary is

“news,” it surely is included in the exception for “newsgathering.”

III.

Conclusion

To summarize, although filmmaking is

protected by the First Amendment, the specific speechprotective rules of a public forum apply only to

communicative activity. Consequently, regulations

governing filmmaking on government-controlled

property need only be “reasonable,” which the permitand-fee requirements for commercial filmmaking on

NPS land surely are. We therefore reverse the grant

of Price’s motion for judgment on the pleadings and the

denial of the defendants’ motion for judgment on the

pleadings; vacate the declaratory judgment and the

permanent injunction entered by the district court;

and remand the case to that court with instructions to

deny Price’s motion for judgment on the pleadings and

to grant the defendants’ motion for judgment on the

pleadings.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge,

concurring: Although I am in complete agreement with

Judge Ginsburg’s analysis and join it fully, I write

separately only to emphasize the limited reach of the

court’s holding. We conclude that the regulation of

most non-communicative speech on government

property is subject to “reasonableness” review. Maj.

Op. at 2, 16-17. We need not—and do not—explain the

full contours of what does and does not constitute

28a

“communicative speech.”

Under Supreme Court

precedent, “communicative” speech is that which

“inten[ds] to convey a particularized message” in a

manner that allows others to understand it. Cf.

Spence v. State of Wash., 418 U.S. 405, 410-11 (1974);

Clark v. Cmty. for Creative Non-Violence, 468 U.S.

288, 294 (1984) (“a message may be delivered by

conduct that is intended to be communicative and that,

in context, would reasonably be understood by the

viewer to be communicative”). After today, we will still

apply heightened scrutiny to a wide variety of speech.

See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.

of Bos., 515 U.S. 557, 569 (1995) (finding “protected

expression” as varied as the “painting of Jackson

Pollock, music of Arnold Schoenberg, or Jabberwocky

verse of Lewis Carroll”). Price’s filmmaking presents

a paradigmatic example of non-communicative speech,

which is itself an oxymoronic term. As Judge Ginsburg

explains, it “is merely a step in the creation of speech.”

Maj. Op. at 15 (emphasis added). Indeed, Price will

still need to edit and show his film before

“communicating” what he “inten[ds] to convey.”

Spence, 418 U.S. at 410-11.

TATEL, Circuit Judge, dissenting: Federal law

prohibits anyone from engaging in “commercial filming

activities” in the national parks without first obtaining

a permit and paying a fee. 54 U.S.C. § 100905(a)(1).

Even though our court recently struck down similar

restrictions on speech in national parks as “overbroad”

and “antithetical to . . . core First Amendment

principle[s],” Boardley v. United States Department of

Interior, 615 F.3d 508, 511 (D.C. Cir. 2010), the court

today upholds these restrictions on grounds

untethered from our court’s precedent and that of our

29a

sister circuits.

Because the permit and fee

requirements penalize far more speech than necessary

to advance the government’s asserted interests, they

run afoul of the First Amendment.

Under 54 U.S.C. § 100905, any person who

wishes to conduct “commercial filming activities” in

any national park must obtain a permit and pay a fee.

Designed solely to “provide a fair return to the United

States,” the fee is “in addition” to the government’s

recovery of all “costs incurred as a result of filming

activities.” Id. § 100905(a)–(b). Although the statute

contains no definition of “commercial filming,” the

National Park Service’s (NPS) implementing

regulations define the term as any “recording of a

moving image by a person, business, or other entity for

a market audience with the intent of generating

income.” 43 C.F.R. § 5.12. Commercial filming

includes “feature film, videography, television

broadcast, [and] documentary,” id., but the term

excludes “[n]ews-gathering activities.” Id. § 5.4.

Appellee Gordon Price, without first obtaining a

permit or paying a fee, used a single camera and

microphone to film in Virginia’s Colonial National

Historical Park, intending to document rumored

“hauntings and . . . unsolved murders” in the area.

Compl. ¶¶ 37-39. Using his footage, Price produced

Crawford Road, an independent film that premiered

for an audience of 250 people and later acquired

additional views on social media platforms. Id. ¶¶ 4042. Several months later, “two NPS officers came to

Price’s [workplace] and issued him a [criminal

30a

citation]” for filming without a permit. Id. ¶ 43. After

the district court dismissed the charge (at the NPS’s

request), Price brought a facial challenge to the

constitutionality of section 100905 and its

implementing regulations (collectively, “Permit

Regime”). Price v. Barr, 514 F. Supp. 3d 171, 179–80

(D.D.C. 2021). Acting on cross-motions for judgment

on the pleadings, the district court ruled that the

Permit Regime violates the First Amendment. Id. at

181.

II.

To evaluate a facial challenge like Price’s, we

must first determine whether the regulated activity is

“speech” protected by the First Amendment. Boardley,

615 F.3d at 514 (internal quotation marks omitted). If

so, we “identify the nature of the forum, because the

extent to which the [g]overnment may limit access

depends on whether the forum is public or non-public.”

Id. (internal quotation marks omitted). Finally, we

“assess whether the government’s justifications for

restricting speech in the relevant forum satisfy the

requisite standard.” Id. (internal quotation marks

omitted). As relevant here, restrictions on speech in

traditional public forums like the National Mall and

designated public forums like “`free speech areas”‘

within the national parks must, at minimum, be

“narrowly tailored to serve a significant governmental

interest” and “leave open ample alternatives for

communication.”

Id. at 515-16 (describing the

standard of scrutiny applicable to “[c]ontent-neutral

restrictions on the time, place, or manner of speech in

a public forum”).

31a

In this case, how we proceed at each step of our

analysis is controlled by Boardley v. United States

Department of Interior, in which our court held facially

unconstitutional NPS regulations making it “unlawful

to engage in expressive activities within any . . .

national parks unless a park official first issue[d] a

permit.” Id. at 511. At the outset, we observed that

requiring a permit for “public expressions of views”

unquestionably regulated “‘speech’ within the meaning

of the First Amendment.” Id. at 512, 514. We then

explained that the NPS regulations applied in “all . . .

locations within the national parks,” including the

“‘free speech areas’ . . . and other public forums within

[the] . . . parks.” Id. at 515, 525. “[W]ithout deciding

the forum status of every part of every national park,”

id. at 521, we analyzed the NPS regulations as

restrictions on speech in public forums, asking

whether the permit requirement was narrowly

tailored to achieve the government’s substantial

interests in protecting national park resources and

facilities from damage, minimizing interference with

park activities, and preserving peace and tranquility

within the parks. Id. at 519-24. We concluded that the

regulations were not narrowly tailored because they

required permits for large groups, small groups, and

individuals even though requiring permits for

“individuals and small groups promote[d] the

government’s [interests] only marginally.” Id. at 522;

see id. at 524 (“Because the means chosen are . . .

substantially broader than necessary to achieve the

government’s interest[s], the NPS regulations are

overbroad and not narrowly tailored.” (internal

quotation marks and citation omitted)).

32a

Like the expressive activities at issue in

Boardley, the “commercial filming activities” regulated

by the Permit Regime constitute speech. Although the

government argued in the district court that filming

receives no First Amendment protection, it wisely

dropped that argument on appeal because “[t]he act of

making an . . . audiovisual recording is necessarily

included within the First Amendment’s guarantee of

speech . . . as a corollary of the right to disseminate the

resulting recording.” ACLU of Illinois v. Alvarez, 679

F.3d 583, 595 (7th Cir. 2012). Indeed, the longstanding

right to “expression by means of [audiovisual

recording],” Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 502 (1952), would have little meaning if “the act

of creating that material” were unprotected. Fields v.

City of Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017);

see Animal Legal Defense Fund v. Wasden, 878 F.3d

1184, 1203 (9th Cir. 2018) (To claim that “the act of

creating an audiovisual recording is not speech

protected by the First Amendment . . . is akin to saying

that even though a book is protected by the First

Amendment, the process of writing the book is not.”).

Moreover, like the permit requirement in

Boardley, the Permit Regime at issue here targets

speech in public forums. As the government concedes,

the Permit Regime applies to all NPS lands, including

both “areas that [undoubtedly] meet the definition of

traditional public forums” as well as “‘free speech

areas’” that constitute “‘designated public forums.’”

Boardley, 615 F.3d at 515; see Appellant’s Br. 41

(Permit Regime “appl[ies] on all NPS lands, including

. . . areas that constitute public forums.”); see also 54

U.S.C. § 100501 (Permit Regime applies to “any area

of land and water administered by the Secretary [of the

33a

Interior], acting through the Director [of the NPS], for

park, monument, historic, parkway, recreational, or

other purposes.”). Because “[t]hese areas are subject

to the same permit [and fee] requirement[s] as all

other locations within the national parks,” they “must

be analyzed as restrictions on speech in public forums,

and we need not . . . decide whether the same analysis

would apply to the diverse range of other areas within

the national parks.” Boardley, 615 F.3d at 515-16.

The government argues that because many

national parks include nonpublic forums, we must

employ the lower standard of scrutiny applicable to

content-neutral restrictions on speech outside public

forums. In Boardley, however, we rejected this precise

argument. We recognized that “many national parks

include areas—even large areas, such as a vast

wilderness preserve—which never have been

dedicated to free expression and public assembly,

would be clearly incompatible with such use, and

would therefore be classified as nonpublic forums.” Id.

at 515. We also observed that, as in this case, the

record lacked evidentiary submissions to “determine

the forum status of the hundreds of national parks

governed by the NPS regulations.” Id. Nevertheless,

because the national parks’ public forums “[were]

subject to the same permit requirement as all other

locations within the . . . parks,” we analyzed the NPS

regulations as restrictions on speech in public forums

“without deciding the forum status of all 391 national

parks.” Id.

The government makes much of the fact that

Price’s “own filming activity . . . occur[red] outside of

any public forum.” Appellant’s Br. 59. But the location

34a

of Price’s filming activity is irrelevant because, as the

Supreme Court has made clear, “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.” Forsyth County v.

Nationalist Movement, 505 U.S. 123, 129 (1992).

At Boardley’s third step, we assess whether the

NPS’s justifications for restricting speech in public

forums satisfy the requisite standard of scrutiny.

Boardley, 615 F.3d at 514. The government contends

that the Permit Regime is content-neutral and, as

such, need only be “‘narrowly tailored to serve a

significant governmental interest’ and ‘leave open

ample alternatives for communication.’” Appellant’s

Br. 42 (quoting Boardley, 615 F.3d at 516). But even if

the Permit Regime is content-neutral, it still fails to

withstand scrutiny under Boardley’s precise

reasoning.

Like the NPS regulations in that case, the

Permit Regime burdens substantially more speech

than necessary to achieve the government’s significant

interests in protecting NPS resources and preventing

interference with park visitors. See Boardley, 615 F.3d

at 519 (finding significant governmental interests in

protecting the national parks’ natural and cultural

resources,

protecting

visitors,

and

avoiding

interference with park activities).

Because

“commercial filming” includes any videography

intended to “generat[e] income,” 43 C.F.R. § 5.12, the

Permit Regime applies to an extraordinarily broad

group of people, ranging from large-scale filming

operations, to small documentary film crews, to

35a

individuals who take short videos on their phones and

later monetize this content on social media platforms.

Even a park visitor who takes a five-minute video on

her phone, planning to post it on YouTube and

generate advertising revenue, must obtain a permit

and pay a fee. Although large commercial filming projects may well “involve equipment operators, filming

subjects, and sustained operations” that burden park

resources and disturb visitors, Appellant’s Br. 52, the

government provides no reason to think that

individuals and small groups “interfere meaningfully

with [these] interests,” Boardley, 615 F.3d at 521

(internal quotation marks omitted); see id. at 522

(“[T]he government has failed to show that most

individuals and small groups . . . pose such problems.”).

“No doubt some individuals and small groups will

cause these problems, but many will not; and the

government has not explained why those [with the

intent to generate income] are more likely to be

problematic” than visitors who capture videos for

personal use. Id. at 522. Thus, like the regulations in

Boardley that “applie[d] not only to large groups, but

also to small groups and even lone individuals,” the

Permit Regime “target[s] much more [speech] than

necessary” to advance the government’s asserted

interests in protecting NPS resources and park

visitors. Id. at 520, 523.

The government argues that the Permit

Regime, in addition to protecting NPS resources and

park visitors from interference by filmmakers,

advances a second significant governmental interest:

“raising money.” Appellant’s Br. 42. But this interest

is a nonstarter because the government may not

“impose a charge for the enjoyment of a right granted

36a

by the federal constitution.” Murdock v. Pennsylvania,

319 U.S. 105, 113 (1943). Although the government

may impose licensing fees to “defray the expenses of

policing” activities guaranteed by the First

Amendment, any such fees may not exceed the amount

needed to cover administrative costs. Id. at 113-14; see

Cox v. State of New Hampshire, 312 U.S. 569, 577

(1941) (permitting “the charge of a fee limited to”

covering administrative costs). As the statute itself

and the implementing regulations make clear, the

Permit Regime’s fee is “in addition” to “any costs

incurred as a result of filming activities or similar

projects, including administrative and personnel

costs.” 54 U.S.C. § 100905(b); see 43 C.F.R. § 5.8

(“[T]he location fee is in addition to any cost

recovery.”).

Thus, even were we to accept the

government’s characterization of the Permit Regime as

simply a means to generate revenue from filmmakers,

it would still amount to an unconstitutional “tax” on

“activities guaranteed by the First Amendment.”

Murdock, 319 U.S. at 113.

The government insists that the Permit

Regime’s fee does not impose a tax on constitutionally

protected speech because it is part of a broader suite of

NPS permit and fee requirements that “tax[]

businesses generally.” Appellant’s Br. 45 (internal

quotation marks omitted); see Majority Op. at 20

(noting that the government “charges a fee for all types

of commercial activity on land controlled by the NPS”).

But the challenged Permit Regime applies only to

“commercial filming activities or similar projects.” 54

U.S.C. § 100905(a)(1). It is thus irrelevant that other

statutes and regulations not implicated in this lawsuit

37a

apply to “commercial activity, in general.” Appellant’s

Br. 45.

Next, the government argues that it may tax

commercial filming in its “proprietary capacity,” citing

the Eleventh Circuit’s statement in Atlanta Journal

and Constitution v. Atlanta Department of Aviation

that “‘when the [government] acts as a proprietor,

reasonable regulations may include profit-conscious

fees for access for expressive conduct.’” Appellant’s Br.

48 (first quote); id. at 47 (second quote) (quoting

Atlanta Journal, 322 F.3d 1298, 1309 (11th Cir. 2003));

see Majority Op. at 20-21. But as the Eleventh Circuit

made clear, that rule applies only to fees charged for

“distribution space in a non-public forum.” Atlanta

Journal, 322 F.3d at 1312 (emphasis added). The

Permit Regime levies fees in public forums. And

unlike the rental fees at issue in the government’s

cited cases, the Permit Regime’s fee applies to

individuals who neither reserve “fixed locations” on

government property nor use such locations “to sell,

exhibit or distribute materials.”

Heffron v.

International Society for Krishna Consciousness, Inc.,

452 U.S. 640, 643 (1981) (internal quotation marks

omitted); see Jacobsen v. City of Rapid City, 128 F.3d

660, 664 n.2 (8th Cir. 1997) (explaining that the

government may charge “rent . . . as landlord” when a

“newspaper leases public property for commercial

use”). Accordingly, the government’s desire to tax

commercial filming does not qualify as a “significant

governmental interest.” Boardley, 615 F.3d at 516.

Because the Permit Regime’s restrictions on

speech in public forums are not narrowly tailored to

38a

serve a significant governmental interest, they cannot

withstand constitutional scrutiny.

III.

My colleagues opt to forego any application of

heightened scrutiny to the government’s speech

restrictions and instead uphold the Permit Regime

under a “‘reasonableness’ standard.” Majority Op. at

17-18. Specifically, they hold that filming is not the

“type of activity” to which forum analysis applies and,

thus, filming in public forums “is subject to the same

‘reasonableness’ standard that applies to restrictions

on [F]irst [A]mendment activity in . . . nonpublic

forum[s].” Majority Op. at 18 (“For [filming], these

areas are effectively nonpublic forums.”).

The application of forum analysis to expressive

pursuits, however, is not reserved for particular types

of First Amendment expression. Far from parsing

different treatment for different types of expression,

the Supreme Court focuses on “the character of the

property at issue,” applying public forum doctrine to

“property which . . . by tradition or designation [is] a

forum for public communication” or “expressive

activity.” Perry Education Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 44-46 (1983) (emphasis

added). Put another way, public forums are defined by

“the objective characteristics of the property” or the

designation of “propert[y] for expressive use.”

Arkansas Education Television Commission v. Forbes,

523 U.S. 666, 677-78 (1998); see Members of City

Council of Los Angeles v. Taxpayers for Vincent, 466

U.S. 789, 814 (1984) (analyzing the “‘character of the

property at issue’”). If the property at issue qualifies

39a

as a public forum, it remains so regardless of which

particular type of First Amendment expression occurs

within the forum. See John K. Maclver Institute for

Public Policy, Inc. v. Evers, 994 F.3d 602, 611 (7th Cir.

2021) (explaining that forum analysis encompasses

“various expressive pursuits”).

True, as my colleagues observe, “earlier

[Supreme Court] cases” describe public forums as

“natural and proper places” for “assembly,” “discussion

of public questions,” and “dissemination of

information.”

Majority Op. at 11-13 (internal

quotation marks omitted). But this very same case law

emphasizes the broad scope of protection afforded to

speech in public forums, shielding against the

abridgment of “the exercise of [one’s] liberty of

expression in [such] places,” not merely the

abridgement of certain types of expression. Schneider

v. New Jersey, Town of Irvington, 308 U.S. 147, 163

(1939); see also Perry, 460 U.S. at 45 (“[T]he rights of

the state to limit expressive activity [in traditional

public forums] are sharply circumscribed.” (emphasis

added)). Professor Harry Kalven Jr.’s conception of

public forums as First Amendment “easement[s]”

reinforces this point. See Majority Op. at 14. The

venerable right protected by this “easement” is not

merely the right to communicate in public forums. It

is the right “to use the streets and parks for

communication,” which a filmmaker does, regardless

of where he later displays the film. Hague v.

Committee for Industrial Organization, 307 U.S. 496,

515-16 (1939) (emphasis added).

My colleagues

reimagine the public forum to protect the stumping

politician but not the silent photographer, to shield the

shouting protester but not the note-taking reporter.

40a

These distinctions find no basis in First Amendment

jurisprudence. It makes no more sense to exclude

certain types of speech from public forums than it does

to police which squirrels may enter a conservation

easement.

More recently, several of our sister circuits have

reiterated that forum analysis applies to all First

Amendment expression, including filming. For

example, the Seventh Circuit explained that forum

analysis “addresses who has the right of access to

government property” to engage in “expressive

pursuits—whether that expressive pursuit is

leafletting teachers, soliciting charitable donations,

wearing political buttons at a polling place, or

gathering information for news dissemination.” Evers,

994 F.3d at 611-12 (emphasis added). The First, Fifth,

and Eighth Circuits, moreover, have applied forum

analysis to filming just as they would to any other form

of speech. See Ness v. City of Bloomington, 11 F.4th

914, 923 (8th Cir. 2021) (applying “the level of scrutiny

applicable” to “traditional public fora” because the

filming activities occurred in a “public park”); Glik v.

Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (explaining

that the government’s right to restrict filming was

“‘sharply circumscribed’” because the filming occurred

in “the oldest city park in the United States and the

apotheosis of a public forum”); Turner v. Lieutenant

Driver, 848 F.3d 678, 690 (5th Cir. 2017) (explaining

that filming from a public sidewalk is “‘subject to

reasonable time, place, and manner restrictions” that

must be “‘narrowly tailored to serve a significant

governmental interest’”).

41a

Although some of these cases arose in the

context of recording public officials, Majority Op. at 15,

the principles they state are much broader, describing

“the First Amendment’s protection of the broader right

to film” in public places. Turner, 848 F.3d at 689; see

id. at 690 (“Like all speech, filming the police ‘may be

subject to reasonable time, place, and manner

restrictions.’”); Wasden, 878 F.3d at 1203-04 (citing

cases involving the filming of police officers as

examples of the “‘First Amendment right to film

matters of public interest”); Western Watersheds

Project v. Michael, 869 F.3d 1189, 1196 (10th Cir.

2017) (“An individual who photographs animals . . . is

creating speech in the same manner as an individual

who records a police encounter.”). Yet the court cites

not a single case that applies a “reasonableness”

standard of scrutiny to a government restriction on

filming in public places. By stripping filming of the

protections afforded to expression in public forums, the

court puts us in direct conflict with other circuits and

leaves important expressive activities unprotected in

places where the First Amendment’s guarantee of free

speech should be at its apex.

IV.

Under today’s sweeping holding, regulation of

filming on government property is no longer subject to

heightened scrutiny, even when the filming occurs in

traditional public forums where “the rights of the

[government] to limit expressive activity are sharply

circumscribed” or designated public forums that the

government “has opened for use by the public as a

place for expressive activity.” Perry, 460 U.S. at 45;

see Majority Op. at 2. Before standing outside

42a

Yosemite National Park’s visitor center using a cell

phone to record commentary on our national parks

that will air on an advertisement-supported YouTube

channel, an individual must obtain a permit and pay a

fee. Before filming a protest on the National Mall,

tourists must obtain a permit and pay a fee if they have

any inkling that they might later make money from

this footage on social media. And when the filming is

spontaneous, these individuals will be criminally liable

and face up to six months in prison even though they

could not possibly have obtained a permit ahead of

time. See 18 U.S.C. § 1865; 36 C.F.R. §§ 1.3, 5.5(a). By

stripping public forum protection from filming, my

colleagues—for the very first time—disaggregate

speech creation and dissemination, thus degrading

First Amendment protection for filming, photography,

and other activities essential to free expression in

today’s world.

See Wasden, 878 F.3d at 1203

(disaggregating video creation from dissemination

“defies common sense”); Fields, 862 F.3d at 358

(similar); Alvarez, 679 F.3d at 595-96 (similar). I

respectfully dissent.

43a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GORDON M. PRICE,

Plaintiff,

WILLIAM P. BARR, U.S.

Attorney General, et al.,

Civil Action No. 193672 (CKK)

Defendant.

MEMORANDUM OPINION

(January 22, 2021)

Plaintiff Gordon M. Price is an independent

filmmaker from Yorktown, Virginia. In this action,

Mr. Price asserts a facial constitutional challenge to

the permitting requirements imposed on commercial

filming by 54 U.S.C. § 100905 and its implementing

regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5. Mr.

Price brings this action against the Attorney General

of the United States of America, the Secretary of the

Department of the Interior, and the Director of the

National Park Service (“NPS”) (collectively,

“Defendants”). Defendants have now moved for a

judgment on the pleadings, seeking the complete

dismissal of Mr. Price’s case. See Defs.’ Mot. at 1. In

turn, Mr. Price has filed a cross-motion for a judgment

on the pleadings in his favor. See Pl.’s Mot. at 1.

44a

Upon consideration of the briefing, the relevant

authorities, and the record as a whole,1 the Court

concludes that Mr. Price has established his claim on

the merits that the restrictions on commercial filming

set forth in 54 U.S.C. § 100905 and its implementing

regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5,

violate the First Amendment. Accordingly, the Court

DENIES Defendants’ motion for a judgment on the

pleadings and GRANTS Mr. Price’s cross-motion for a

judgment on the pleadings. As set forth below, the

Court will enter a declaratory judgment and

permanent injunction in Mr. Price’s favor.

BACKGROUND

Section 100905

Mr. Price raises a facial constitutional

challenge to 54 U.S.C. § 100905 and its implementing

regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5. See

Compl. ¶ 1. Section 100905 provides that the

1 The Court’s consideration has focused on the following briefing

and material submitted by the parties:

 Compl., ECF No. 1;

 Am. Answer, ECF No. 13;

 Defs.’ Mem. in Supp. of Def.’s Mot. for J. on the Pleadings

(“Defs.’ Mot.”), ECF No. 18;

 Pl.’s Cons. Mem. of P. & A. in Supp. of Cross-Mot. for J.

on the Pleadings and in Opp’n to Defs.’ Mot. (“Pl.’s

Mot.”), ECF No. 25-1;

 Defs.’ Reply in Supp. of Defs.’ Mot. & Opp’n to Pl.’s Mot.

(“Def.’s Opp’n”), ECF No. 31; and

 Pl.’s Reply to Defs.’ Opp’n (“Pl.’s Reply”), ECF No. 33.

In an exercise of its discretion, the Court finds that holding oral

argument in this action would not be of assistance in rendering

a decision. See LCvR 7(f).

45a

Secretary of the Interior “shall require a permit and

shall establish a reasonable fee for commercial

filming activities or similar projects in a System unit.”

54 U.S.C. § 100905(a)(1). The statute’s paid permit

requirement, however, does not apply to noncommercial filming. See id. Separately and in

addition to the permit fee required for commercial

filming by § 100905(a)(1), the Secretary of the Interior

“shall [also] collect any costs incurred as a result of

filming activities or similar projects, including

administrative and personnel costs.” Id. § 100905(b).

Additionally, § 100905(c) imposes a distinct permit

requirement for “still photography,” applicable in

limited circumstances. Id. § 100905(c)(1)–(2). Section

100905’s permitting regime for “commercial filming”

and “still photography” applies to “any area of land

and water administered by the Secretary [of the

Interior], acting through the Director [of the National

Park Service], for park, monument, historic, parkway,

recreational, or other purposes.”

Id. § 100501

(defining a “system unit”); see also id. § 100102(1)–(6).

Section 100905 itself does not define the terms

“commercial filming” or “still photography.” See id.

§ 100905; Compl. ¶ 24.

The permitting regime required by § 100905

promotes two principal goals: land preservation and

rent extraction.

As to the former, Congress

endeavored to reduce “the impairment of the values

and resources which are to be protected on federal

lands.” H.R. Rep. 106-75, at 3 (1999). Accordingly,

§ 100905 prohibits the issuance of a permit for “any

filming” or “still photography” that threatens “a

likelihood of resource damage.”

54 U.S.C.

§ 100905(d)(1).

Section 100905, however, also

46a

furthers the purpose of rent extraction. On its face,

§ 100905 states that the permit fees imposed on

“commercial filming” “shall provide a fair return to

the United States,” measured in relation to the

“number of days of the filming activity,” the “size of

the film crew present,” the “amount and type of

equipment used,” id. § 100905(a)(1)(A)–(C), or any

other factor the Secretary of the Interior deems

“necessary,” id. § 100905(a)(2). All such fees collected

under § 100905 “shall be available for expenditure by

the Secretary [of the Interior], without further

appropriation and shall remain available until

expended.” Id. § 100905(e)(1). Notably, the statute’s

legislative history emphasizes the fact that “highgrossing films” are produced in national parks and

indicates that § 100905’s purpose “is to authorize the

Secretary of the Interior . . . to assess fees for

commercial filming activities on Federal lands.” S.

Rep. 106-67, at 2–3 (1999). Relatedly, Congress has

declared “that it is the policy of the United States that

the United States receive fair market value of the use

of the public lands and their resources.” 43 U.S.C.

§ 1701(a)(9).

To implement the permitting regime required

by § 100905, the Department of the Interior (“DOI”)

promulgated the regulations found at 43 C.F.R. Part

5. The regulations thereunder “cover[] commercial

filming and still photography activities on lands and

waters administered by the National Park Service,

the Bureau of Land Management, and the U.S. Fish

and Wildlife Service.” 43 C.F.R. § 5.1. In accordance

with § 100905, the DOI implementing regulations

require a permit for “[a]ll commercial filming.” Id.

47a

§ 5.2(a). The DOI regulations define “commercial

filming” as:

[T]he film, electronic, magnetic, digital, or

other recording of a moving image by a

person, business, or other entity for a market

audience with the intent of generating

income. Examples include, but are not

limited to, feature film, videography,

television broadcast, or documentary, or

other similar projects. Commercial filming

activities may include the advertisement of a

product or service, or the use of actors,

models, sets, or props.

Id. § 5.12. The DOI regulations, however, specifically

exempt “news-gathering” activities from the

permitting regime. Id. § 5.4(a). For the purposes of 43

C.F.R. Part 5, “news” is defined as “information that is

about current events or that would be of current

interest to the public, gathered by news-media entities

for dissemination to the public.” Id. § 5.12. The DOI

regulations also set forth a separate set of less

restrictive permitting criteria for “still photography.”

Id. § 5.2(b).

Finally, the DOI regulations enumerate seven

permissible bases for the denial of a commercial

filming or still photography permit. See id. § 5.5(a)–

(g). Specific to the national parks themselves, a

permit may be denied where the commercial filming

or still photography would “[r]esult in unacceptable

impacts or impairment to National Park Service

resources or values.” Id. § 5.5(d). Failure to comply

with any provision of 43 C.F.R Part 5, including the

48a

obligation to procure a permit for commercial filming

or still photography, is a violation of 36 C.F.R. § 5.5.

Thereunder, a permit violation carries the potential

for fines and up to six months in prison. See 18 U.S.C.

§ 1865; 36 C.F.R. § 1.3.

Mr. Price’s Commercial Filming

Mr. Gordon Price is a part-time independent

filmmaker who lives and works in Yorktown,

Virginia. See United States v. Price, No. 4:19-po-180DEM (E.D. Va. July 31, 2019), ECF No. 10-1 (Price

Decl.), ¶ 1. In February 2017, Mr. Price and a

colleague began filming an independent 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.” Id. ¶ 2. Mr. Price filmed some

Crawford Road scenes “in areas open to the general

public at about four locations within the Yorktown

Battlefield in the Colonial National Historical Park,”

which is property administered by NPS. Id. ¶ 8. Mr.

Price shot multiple scenes on the Yorktown

Battlefield, as well as a location known as “Crybaby

Bridge” along Crawford Road. Id. ¶ 9. No more than

four people were present during this filming, and Mr.

Price used only a camera tripod and a microphone,

without any “heavy equipment,” for his recordings in

the park. Id. Mr. Price, however, “neither sought nor

received a permit from [NPS] before filming on the

Battlefield.” Id. ¶ 10.

Crawford Road premiered at a restaurant in

Newport News, Virginia on October 17, 2018 before a

crowd of approximately 250 people. Id. ¶¶ 3–4. The

49a

film garnered some attention in the local press and on

social media sites. See id. ¶¶ 5–6. In December 2018,

however, two NPS officers located Mr. Price at work

and “issued him a violation notice for failure to obtain

a commercial filming permit under 36 C.F.R. § 5.5(a).”

Id. ¶ 11; see also United States v. Price, No. 4:19-po180-DEM (E.D. Va. Mar. 26, 2019), ECF No. 1 (Not.

of Violation), at 1. Mr. Price subsequently appeared

before the United States District Court for the

Eastern District of Virginia, and, after retaining

counsel, challenged his 36 C.F.R. § 5.5 violation on

grounds that § 100905 was “facially invalid as a

content-based prior restraint of freedom of speech.”

United States v. Price, No. 4:19-po-180-DEM (E.D.

Va. July 31, 2019), ECF No. 9 (Mot. to Dismiss), at 1.

In response, the government elected to dismiss the

charge against Mr. Price rather than litigating the

constitutional question raised, explaining that “the

interests of justice [were not] served by pursuing this

prosecution.” United States v. Price, No. 4:19-po-180DEM (E.D. Va. Aug. 27, 2019), ECF No. 19 (Gov’t Mot.

to Dismiss), ¶ 6.

Nonetheless, the government maintained that

§ 100905’s permitting regime was constitutional, that

all commercial filming within NPS’s jurisdiction still

required a permit, and that “failure to comply with

any provision of 43 CFR part 5 is a violation.” Id.

¶¶ 2–5. As such, “the government did not suggest in

any way that it would refrain from issuing further

violation notices to Mr. Price if he films on federal

land in the future.” Compl. ¶ 53; Am. Answer ¶ 53.

Ultimately, the district court dismissed the criminal

case against Mr. Price and found that the

government’s voluntary dismissal deprived the court

50a

of jurisdiction to consider the merits of Mr. Price’s

First Amendment challenge to § 100905 and its

implementing regulations. See United States v.

Price, No. 4:19-po-180-DEM (E.D. Va. Nov. 1, 2019),

ECF No. 23 (Order), at 4. The district court, however,

advised Mr. Price that he could still “assert his

constitutional claims in a civil action.” Id.

Following the dismissal of the charge against

Mr. Price, the specter of future violations under

§ 100905 had at least two effects on Mr. Price’s

conduct. First, Mr. Price altered his plans for his

original Crawford Road film. After receiving the 36

C.F.R. § 5.5 violation notice, Mr. Price “canceled

upcoming screenings of Crawford Road and reedited

[the film] to delete footage that had been taken on

property covered by the charge.” Compl. ¶ 46; Am.

Answer ¶ 46. He also suspended ongoing negotiations

regarding the distribution of the film and presently

remains unable to obtain distribution for Crawford

Road. See Compl. ¶ 47; Am. Answer ¶ 47. Second,

Mr. Price altered the plans for his new film entitled

Ten Doors, United States v. Price, No. 4:19-po-180DEM (E.D. Va. Aug. 29, 2019), ECF No. 20-1 (Price

Decl.), ¶ 3, which was to “include a recreation of the

Saltville Massacre that occurred on October 3, 1864,

in Saltville, Virginia.” Id. In preparation for this

second film, Mr. Price had scouted filming locations

“that included the Yorktown Battlefield and the

Manassas National Battlefield,” both federal parks

under NPS jurisdiction. See id. ¶ 4. Mr. Price,

however, has not proceeded with any filming at these

sites out of concern for a subsequent citation and

penalty under § 100905 and its implementing

regulations. See id.

51a

On December 9, 2019, Mr. Price filed a civil

complaint with this Court challenging the facial

constitutionality of 54 U.S.C. § 100905 and its

implementing regulations, 43 C.F.R. Part 5 and 36

C.F.R. § 5.5. See Compl. ¶ 1. In his complaint, Mr.

Price asks this Court for “[a] declaratory judgment

stating that the requirements in 54 U.S.C. § 100905,

43 C.F.R. Part 5, and 36 C.F.R. § 5.5 that those

engaged in ‘commercial filming’ must obtain permits

and pay fees are unconstitutional.” Compl. at Prayer

for Relief, ¶ A. Relatedly, Mr. Price seeks “[a]

permanent injunction enjoining the permit and fee

requirements for commercial filming in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and

enjoining prosecution and the imposition of criminal

liabili ty thereunder.” Compl. at Prayer for Relief,

¶ B. To support his request for relief, Mr. Price

alleges, in Counts I through VI of his complaint, six

reasons why 54 U.S.C. § 100905 and its implementing

regulations violate the First Amendment. See Compl.

¶¶ 56–107. In Count VI of his complaint, Mr. Price

also alleges that 54 U.S.C. § 100905 and its

implementing regulations violate the equal protection

component of the Fifth Amendment. See Compl.

¶¶ 103–07.

In response to Mr. Price’s complaint,

Defendants filed their answer on February 11, 2020,

see Answer, ECF No. 9, and, shortly thereafter, filed

an amended answer to Mr. Price’s complaint on April

2, 2020, see Am. Answer, ECF No. 13. Defendants

then moved under Federal Rule of Civil Procedure

12(c) for a judgment on the pleadings against Mr.

Price. See Defs.’ Mot. at 1. In turn, Mr. Price opposed

Defendants’ Rule 12(c) motion and filed his own cross52a

motion under Rule 12(c) for a judgment on the

pleadings against Defendants. See Pl.’s Mot. at 1. In

his cross-motion, Mr. Price specifically moves the

Court to “declare that the requirements in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5 that

those engaged in ‘commercial filming’ must obtain

permits and pay fees are unconstitutional” and also to

“permanently enjoin their enforcement and any

prosecution or imposition of criminal liability

thereunder.” Pl.’s Mot. at 45. The parties have now

completed their briefing on the pending crossmotions, and those motions are ripe for this Court’s

review.

II.

LEGAL STANDARD

The parties have each moved for a judgment on

the pleadings under Federal Rule of Civil Procedure

12(c). Rule 12(c) states that “[a]fter the pleadings are

closed—but early enough not to delay trial—a party

may move for judgment on the pleadings.” Fed. R. Civ.

P. 12(c). “[A] Rule 12(c) motion asks the court to

render a judgment on the merits by looking at the

substance of the pleadings and any judicially noted

facts.” Murphy v. Dep’t of Air Force, 326 F.R.D. 47,

49 (D.D.C. 2018) (quotation omitted). “Thus, a Rule

12(c) motion requires the court to consider and decide

the merits of the case, on the assumption that the

pleadings demonstrate that there are no meaningful

disputes as to the facts such that the complaint’s

claims are ripe to be resolved at this very early stage

in the litigation.” Id. (citing 5C Charles Alan Wright

& Arthur R. Miller, Federal Practice & Procedure

§ 1369 (3d ed. 2004)).

53a

To prevail on a Rule 12(c) motion, the “moving

party [must] demonstrate[ ] that no material fact is in

dispute and that it is entitled to judgment as a matter

of law.” Schuler v. PricewaterhouseCoopers, LLP,

514 F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters

v. Nat’l R.R. Passenger Corp., 966 F.2d 1483, 1485

(D.C. Cir. 1992)).

“[T]he Rule 12(c) burden is

substantial: if the Rule 12(c) movant cannot show

both that there is no material dispute of fact (as

reflected in the parties’ pleadings) and that the law is

such that the movant is entitled to judgment as a

matter of law, then the motion for judgment on the

pleadings must be denied.” Murphy, 326 F.R.D. at 49

(emphasis in original).

III.

DISCUSSION

For the reasons set forth herein, the Court

concludes that Mr. Price has established Article III

standing to pursue his claim. Mr. Price has also

established that 54 U.S.C. § 100905 and its

implementing regulations impose a content-based

restriction on expressive speech in public forums that

runs afoul of the First Amendment. Accordingly, the

Court DENIES Defendants’ motion for a judgment on

the pleadings, and the Court GRANTS Mr. Price’s

cross-motion for a judgment on the pleadings. The

Court shall enter a declaratory judgment and

permanent injunction in Mr. Price’s favor.

Article III Standing

“The Constitution grants Article III courts the

power to decide ‘Cases’ or ‘Controversies.’” Carney v.

Adams, 141 S. Ct. 493, 498 (2020) (quoting U.S.

CONST. Art. III, § 2). “The doctrine of standing

54a

implements this requirement” by demanding “that a

case embody a genuine, live dispute between adverse

parties.” Casey, 141 S. Ct. at 498. “To establish

Article III standing, a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection

between the injury and the conduct complained of,’

and (3) a ‘likel[ihood]’ that the injury ‘will be

redressed by a favorable decision.’” Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 157–58 (2014) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

(1992)). In this case, Defendants argue that Mr. Price

lacks Article III standing to challenge the

constitutionality of § 100905 and its implementing

regulations because he “has failed to establish a

sufficient injury in fact.” See Defs.’ Mot. at 10. The

Court disagrees.

Mr. Price raises a classic First Amendment

pre-enforcement challenge to § 100905 and its

implementing regulations. “Pre-enforcement review

is permitted where the threatened enforcement of a

law is ‘sufficiently imminent.’” Woodhull Freedom

Found. v. United States, 948 F.3d 363, 370 (D.C. Cir.

2020) (quoting SBA, 573 U.S. at 159). In this context,

“a plaintiff satisfies the injury-in-fact requirement

where he alleges an intention to engage in a course of

conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder.”

Woodhull, 948 F.3d at 370 (quotations omitted). The

United States Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) “has interpreted the

Supreme Court’s pre-enforcement standing doctrine

broadly in the First Amendment sphere,” Sandvig v.

Sessions, 315 F. Supp. 3d 1, 15 (D.D.C. 2018), and

55a

“[a]n actual arrest, prosecution, or other enforcement

action is not a prerequisite to challenging the law,”

Woodhull, 948 F.3d at 370 (quotation omitted).

Mr. Price meets the pre-enforcement standard

for injury-in-fact in this case. First, Mr. Price has

sufficiently “allege[d] an intention to engage” in his

proposed filmmaking activity. Id. As set forth above,

Mr. Price is an independent filmmaker. See Compl.

¶ 36. Mr. Price is “presently working” on a new

commercial film entitled Ten Doors, about an

historical massacre in Saltville, Virginia in 1864. See

United States v. Price, No. 4:19-po-180-DEM (E.D.

Va. Aug. 29, 2019), ECF No. 20-1 (Price Decl.), ¶¶ 3–

4. For this film, Mr. Price has actively scouted filming

locations within two separate national park sites:

Yorktown Battlefield and the Manassas National

Battlefield. See id. ¶ 4. Moreover, these filming sites

are geographically proximate to Mr. Price, himself a

resident of Yorktown, Virginia, see id. ¶ 2, and Mr.

Price has, in fact, already carried out similar

commercial filming at Yorktown Battlefield for his

previous production of Crawford Road, see Compl.

¶ 38; Am. Answer ¶ 38. For these reasons, Mr. Price

has presented a sufficiently “credible statement” of

his intention to conduct commercial filming within a

national park.

ANSWER Coal. v. District of

Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009); see also

Woodhull, 948 F.3d at 370.

Next, the Court must consider whether Mr.

Price’s proposed course of conduct implicates a

“constitutional interest.” Woodhull, 948 F.3d at 370.

It does. Filming scenes within selected locations, as

Mr. Price plans to do here at Yorktown Battlefield and

56a

the Manassas National Battlefield, is a constituent

part of creating a movie. See Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 336 (2010) (“Laws

enacted to control or suppress speech may operate at

different points in the speech process.”). Accordingly,

Mr. Price’s filmmaking at these parks constitutes a

form of expressive speech protected by the First

Amendment. See disc. infra at § III.B.1; Animal Legal

Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir.

2018) (“It defies common sense to disaggregate the

creation of the video from the video or audio recording

itself. The act of recording is itself an inherently

expressive activity.”). Mr. Price argues this point

forcefully in his opening brief, see Pl.’s Mot. at 9–12,

and Defendants appear to concede the argument in

their opposition brief by not responding. Regardless,

the Court is convinced that Mr. Price’s filmmaking

constitutes a form of expressive speech protected by

the First Amendment. See disc. infra at § III.B.1.

Finally, Mr. Price has also established that his

proposed filmmaking creates “a credible threat of

prosecution.” Woodhull, 948 F.3d at 370. Where a

plaintiff “challenge[s] [a] law[] burdening expressive

rights” and offers a “credible statement . . . of intent

to commit violative acts,” he may rely upon the

“conventional background expectation that the

government will enforce the law.” United States

Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d

674, 739 (D.C. Cir. 2016) (quotation omitted). This is

particularly true in the First Amendment context,

where the willingness of the courts “to permit preenforcement review is at its peak.” Id. at 740.

Consequently, Mr. Price could very well satisfy the

“threat of prosecution” standard absent any showing

57a

of prior prosecutions under § 100905 and its

implementing regulations. See Sandvig, 315 F. Supp.

3d at 19. But, of course, in this case Mr. Price does

not rely on the hypothetical. NPS officials have

already charged Mr. Price under 36 C.F.R. § 5.5 for

filming without a permit at “Yorktown Battlefield in

the Colonial National Historical Park.” Compl. ¶ 38;

see also United States v. Price, No. 4:19-po-180-DEM

(E.D. Va. Mar. 26, 2019), ECF No. 1 (Not. of

Violation), at 1. And even while the government

dismissed that charge against Mr. Price, it continued

to defend the constitutionality of § 100905 and its

enforcement against commercial filmmakers. See

United States v. Price, No. 4:19-po-180-DEM (E.D.

Va. Aug. 27, 2019), ECF No. 19 (Gov’t Mot. to

Dismiss), ¶¶ 2–5. Now, Mr. Price plans to shoot

another commercial film at Yorktown Battlefield—

the very same site where he received his initial

violation. See Compl. ¶ 54. On this record, Mr. Price

has convincingly demonstrated a credible threat of

prosecution under § 100905 and its implementing

regulations.

sum,

Mr.

Price

has

adequately

demonstrated injury-in-fact in this pre-enforcement

action to challenge the restrictions on commercial

filming imposed by § 100905 and its implementing

regulations. Woodhull, 948 F.3d at 370. Defendants,

moreover, do not challenge the remaining two

elements of Article III standing: traceability and

redressability. See SBA, 573 U.S. at 158. And for good

reason. The restriction on Mr. Price’s ability to film

at Yorktown Battlefield and the Manassas National

Battlefield is clearly traceable to § 100905 and its

implementing regulations.

Furthermore, any

58a

unconstitutional infringement this regime might

effectuate would be redressable through an injunction

against its enforcement, the very relief Mr. Price now

seeks. For these reasons, Mr. Price has satisfied each

element of Article III standing in this action. See

SBA, 573 U.S. at 157–58.

There is, however, an important limitation to

Mr. Price’s Article III standing. As noted above,

§ 100905

imposes

two

distinct

permitting

requirements: one for commercial filming and one for

photography. See 54 U.S.C. § 100905(a), (c). The

regulations in 43 C.F.R. Part 5 similarly distinguish

between permits for commercial filming on the one

hand, see 43 C.F.R. § 5.2(a), and for photography on

the other, see id. at § 5.2(b). While Mr. Price has

established a constitutional injury under the

commercial filming regulations, the Article III “case”

and “controversy” requirement still separately

constrains this Court’s authority to review the

distinct provisions in § 100905 and 43 C.F.R. Part 5

pertaining to photography. See Williams v. Lew, 819

F.3d 466, 476 (D.C. Cir. 2016). This is problematic

because the record in this case relates exclusively to

Mr. Price’s commercial filming efforts and says

nothing of his photography ambitions. See Compl.

¶ 54; United States v. Price, No. 4:19-po-180-DEM

(E.D. Va. Aug. 29, 2019), ECF No. 20-1 (Price Decl.),

¶¶ 3–4. In this way, Mr. Price has not established any

“intention” to carry out photography in a manner that

would credibly threaten prosecution under the

photography permitting requirements of § 100905

and its implementing regulations. Woodhull, 948

F.3d at 370.

Such a “controversy” is purely

hypothetical at this time.

59a

Therefore, the Court “declines to scrutinize the

constitutionality of those provisions of [§ 100905 and

its implementing regulations] that are not before it in

this case.” Am. Soc. of Ass’n Executives v. United

States, 23 F. Supp. 2d 64, 71 (D.D.C. 1998), aff’d sub

nom. Am. Soc. of Ass’n Executives v. United States,

195 F.3d 47 (D.C. Cir. 1999). Where a plaintiff’s

constitutional injury derives from a specific statutory

or regulatory provision, a court should constrain its

review to the alleged defect therein. See id.; Tanner

Advert. Grp., L.L.C. v. Fayette Cty., 451 F.3d 777, 795

(11th Cir. 2006) (Birch, J., concurring) (“[S]tanding to

make a facial challenge to a particular provision

under the overbreadth doctrine does not give the

plaintiff standing to challenge other sections, or the

entire statutory scheme, if the plaintiff was not

injured thereunder.”).

To opine on the

constitutionality of statutory provisions unrelated to

the actual “case” or “controversy” before the Court

would contravene the ethos of the Article III standing

doctrine. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1548 (2016). Mr. Price implicitly acknowledges this

limitation, as he requests injunctive relief specific to

the “commercial filming” provisions of 54 U.S.C.

§ 100905 and 43 C.F.R. Part 5. See Pl.’s Mot. at 45;

Compl., at Prayer for Relief, ¶¶ A–B. The Court

thinks this wise. As such, the Court concludes that

Mr. Price has established Article III standing only to

challenge the permit requirements for “commercial

filming” in § 100905 and its implementing

regulations. The Court will limit its constitutional

review accordingly.

60a

First Amendment Analysis

“The First Amendment prohibits laws

‘abridging the freedom of speech.’” Minnesota Voters

All. v. Mansky, 138 S. Ct. 1876, 1885 (2018) (quoting

U.S. CONST. amend. I). In his motion, Mr. Price

argues that 54 U.S.C. § 100905 and its implementing

regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5,

violate this First Amendment right. See Pl.’s Mot. at

6–7, 45. Accordingly, Mr. Price asserts a facial

challenge to 54 U.S.C. § 100905 and its implementing

regulations. See Pl.’s Mot. at 16; Compl. ¶ 2. Such a

facial challenge is appropriate where a plaintiff, like

Mr. Price here, maintains that a law is overbroad and

impermissibly restricts “‘a substantial amount of

speech that is constitutionally protected.’” Boardley

v. U.S. Dep’t of Interior, 615 F.3d 508, 513 (D.C. Cir.

2010) (quoting Forsyth County v. Nationalist

Movement, 505 U.S. 123, 130 (1992)); see also disc.

infra at § III.B.3 (discussing overly broad scope of

§ 100905 and its implementing regulations).

“Claims under the Free Speech Clause of the

First Amendment are analyzed in three steps.”

Boardley, 615 F.3d at 514. First, the Court must

determine “whether the activity at issue is speech

protected by the First Amendment.” Id. (quotation

omitted). Second, the Court must “identify the nature

of the forum, because the extent to which the

Government may limit access depends on whether the

forum is public or nonpublic.” Id. And third, the

Court must “assess whether the government’s

justifications for restricting speech in the relevant

forum satisfy the requisite standard.” Id. The Court

will apply this framework to Mr. Price’s facial First

61a

Amendment challenge to § 100905 and its

implementing regulations, addressing each prong of

the analysis in turn.

1. Filming A Movie Constitutes Expressive

Speech Protected By The First Amendment

As discussed above, filming a movie is

expressive speech protected by the First Amendment.

Two foundational First Amendment principles compel

this conclusion. First, “the Supreme Court has long

recognized that the First Amendment protects film”

itself. Turner v. Lieutenant Driver, 848 F.3d 678, 688

(5th Cir. 2017) (citing Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 502 (1952) (“[W]e conclude that

expression by means of motion pictures is included

within the free speech and free press guaranty of the

First and Fourteenth Amendments.”)); see also

Jacobellis v. Ohio, 378 U.S. 184, 187 (1964) (“Motion

pictures are within the ambit of the constitutional

guarantees of freedom of speech and of the press.”).

Second, the Supreme Court has found that “the

creation and dissemination of information are speech

within the meaning of the First Amendment.” Sorrell

v. IMS Health Inc., 564 U.S. 552, 570 (2011)

(emphasis added); see also Citizens United, 558 U.S.

at 336 (“Laws enacted to control or suppress speech

may operate at different points in the speech

process.”). Taken together, these First Amendment

principles indicate that 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

62a

filmmaking. Indeed, “[i]t defies common sense to

disaggregate the creation of the video from the video

or audio recording itself.” Animal Legal Def. Fund,

878 F.3d at 1203. Applying this reasoning, multiple

circuit courts have granted First Amendment

protection to filmmaking. See, e.g., id. at 1204

(“Because the recording process is itself expressive

and is inextricably intertwined with the resulting

recording, the creation of audiovisual recordings is

speech entitled to First Amendment protection as

purely expressive activity.”) (quotation omitted);

Fields v. City of Phila., 862 F.3d 353, 358 (3d Cir.

2017) (“The First Amendment protects actual photos,

videos, and recordings . . . and for this . . . to have

meaning [it] must protect the act of creating that

material.”).

This Court is persuaded by such

reasoning, which comports with the Supreme Court’s

First Amendment jurisprudence protecting not only

the final form of expression, but also its medium and

the iterative steps used in the creative process. See,

e.g., City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)

(“[R]egulation of a medium inevitably affects

communication itself.”).

Finally, as a practical

matter, Defendants do not respond in their opposition

brief to Mr. Price’s argument that filming a movie is

a form of speech, apparently conceding the point. See

Pl.’s Mot. at 9–12; see generally Defs.’ Opp’n, ECF No.

31. For these reasons, the Court concludes that

filming a movie is a form of speech protected by the

First Amendment.

63a

2. Section 100905 And Its Implementing

Regulations Restrict Speech In Public Forums

Because § 100905 and its implementing

regulations affect speech protected by the First

Amendment, the Court must next “identify the nature

of the forum” within which they restrict such speech.

Boardley, 615 F.3d at 514. The Supreme Court has

recognized “three types of government-controlled

spaces: traditional public forums, designated public

forums, and nonpublic forums.” Minnesota Voters

All., 138 S. Ct. at 1885. “In a traditional public

forum—parks, streets, sidewalks, and the like—the

government may impose reasonable time, place, and

manner restrictions on private speech, but

restrictions based on content must satisfy strict

scrutiny, and those based on viewpoint are

prohibited.” Id. “The same standards apply in

designated public forums.” Id. “In a nonpublic forum,

on the other hand—a space that ‘is not by tradition or

designation a forum for public communication’—the

government has much more flexibility to craft rules

limiting speech.” Id. (quoting Perry Ed. Assn. v. Perry

Local Educators’ Assn., 460 U.S. 37, 46 (1983)).

“The dispositive question” in characterizing a

particular forum is “what purpose [the forum] serves,

either by tradition or specific designation.” Boardley,

615 F.3d at 515. Relevant here, a “park” becomes a

traditional public forum where “it has ‘immemorially

been held in trust for the use of the public and, time

out of mind, ha[s] been used for purposes of assembly,

communicating thoughts between citizens, and

discussing public questions.’” Id. (quoting Perry

Educ. Ass’n, 460 U.S. at 45).

Moreover, the

64a

government may “create a designated public forum if

government property that has not traditionally been

regarded as a public forum is intentionally opened up

for that purpose.” Pleasant Grove City v. Summum,

555 U.S. 460, 469 (2009) (quotation omitted).

Section 100905 and its implementing

regulations restrict speech in public forums. On its

face, the permitting regime applies to “any area of

land and water administered by the Secretary [of the

Interior], acting through the Director [of the National

Park Service], for park, monument, historic, parkway,

recreational, or other purposes.” 54 U.S.C. § 100501.

The scope of § 100905’s permitting regime, therefore,

necessarily covers multiple locations that courts have

already identified as traditional public forums. For

example, the National Park Service administers the

National Mall, a forum “where men and women from

across the country will gather in the tens of thousands

to voice their protests or support causes of every kind”

and where “the constitutional rights of speech and

peaceful assembly find their fullest expression.”

ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949,

952 (D.C. Cir. 1995). By way of further example,

§ 100905 applies to sidewalks outside the Vietnam

Veterans Memorial, which the D.C. Circuit has also

identified as a traditional public forum.

See

Henderson v. Lujan, 964 F.2d 1179, 1183 (D.C. Cir.

1992); 36 C.F.R. § 7.96(g)(ix)–(x). Unsurprisingly, the

D.C. Circuit has also concluded more broadly that

“many national parks undoubtedly include areas that

meet the definition of traditional public forums.”

Boardley, 615 F.3d at 515.

65a

Beyond this traditional public forum analysis,

§ 100905 and its implementing regulations also apply

to designated public forums administered by the

National Park Service. See Pleasant Grove City, 555

U.S. at 469. For example, the national parks contain

designated “free speech areas” where visitors can

specifically engage in First Amendment protected

activities, such as speechmaking or picketing. See 36

C.F.R. § 2.51; Boardley, 615 F.3d at 515 (“The

government concedes the ‘free speech areas’ made

available within national parks . . . are ‘designated

public forums.’”). In fact, Defendants acknowledge

that Colonial National Historical Park itself, the

national park where Mr. Price filmed Crawford Road,

“has designated an area close to the Yorktown

Battlefield visitor center . . . for demonstrations,

making that portion of the park a designated public

forum.” Defs.’ Mot. at 16. Accordingly, § 100905 and

its implementing regulations apply not only to

traditional public forums like the National Mall, but

also to designated public forums, like free speech

areas within the national parks.

3. Section 100905 And Its Implementing

Regulations

Not

Satisfy

Heightened

Constitutional Scrutiny

As set forth above, § 100905 and its

implementing regulations restrict expressive speech

(i.e., filming a movie) carried out in traditional public

forums and designated public forums. The Court,

therefore, must apply a heightened level of First

Amendment scrutiny to this permitting regime. See

Minnesota Voters All., 138 S. Ct. at 1885. For the

reasons provided herein, § 100905 and its

66a

implementing regulations do not satisfy this

heightened level of constitutional review and,

therefore, run afoul of the First Amendment.

a) Section 100905 And Its Implementing

Regulations Impose a Content-Based Restriction on

Speech

The applicable form of heightened scrutiny

that § 100905 and its implementing regulations

receive depends on whether they impose a “contentbased” or “content-neutral” restriction on speech. See

Minnesota Voters All., 138 S. Ct. at 1885.

“Government regulation of speech is content based if

a law applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed v.

Town of Gilbert, 576 U.S. 155, 163 (2015). “This

commonsense meaning of the phrase ‘content based’

requires a court to consider whether a regulation of

speech ‘on its face’ draws distinctions based on the

message a speaker conveys.” Id. (quoting Sorrell, 564

U.S. at 566). “Some facial distinctions based on a

message are obvious, defining regulated speech by

particular subject matter, and others are more subtle,

defining regulated speech by its function or purpose.”

Reed, 576 U.S. at 163.

Both, however, “are

distinctions drawn based on the message a speaker

conveys, and, therefore, are subject to strict scrutiny.”

Id. at 163–64. The parties dispute whether § 100905’s

specific application to “commercial filming” qualifies

as a content-based restriction.

To support the argument that § 100905 and its

implementing regulations are content-neutral,

Defendants rely principally on the Eighth Circuit’s

67a

decision in Josephine Havlak Photographer, Inc. v.

Village of Twin Oaks, 864 F.3d 905 (8th Cir. 2017),

which of course is not binding authority in this case.

See Defs.’ Mot. at 25. In Havlak, the Eighth Circuit

considered a First Amendment challenge to a

municipal ordinance stating that: “[T]he maintaining

of a concession or the use of any park facility,

building, trail, road, bridge, bench, table or other park

property for commercial purposes is prohibited unless

a permit is issued by the Board of Trustees or its

designated representative(s).” Id. at 910 n.2. The

plaintiff in Havlak asserted that the ordinance

created a content-based distinction between

commercial and non-commercial photography in the

park. See id. at 914. The Eighth Circuit, however,

disagreed. Instead, the Eighth Circuit reasoned that

the ordinance was content-neutral because it “does

not reference any specific commercial enterprise or

any specific message. It applies equally, for example,

to commercial photographers and to hot dog vendors.”

Id. Defendants now argue, here, that the restriction

on “commercial filming” in § 100905 is analogous to

the content-neutral ordinance in Havlak, which

required a permit for all commercial activity on

municipal park grounds. See Defs.’ Mot. at 25.

Conversely, Mr. Price relies on the Supreme

Court’s holding in Sorrell v. IMS Health Inc., 564 U.S.

552 (2011), to argue that § 100905 and its

implementing regulations are, in fact, content-based

restrictions on speech. In Sorrell, the Supreme Court

considered a First Amendment challenge to a

Vermont law, “Act 80,” that regulated the disclosure

of “prescriber-identifying information.” Id. at 558.

Prescriber-identifying information is the data

68a

collected by pharmacies regarding the prescriptions

sent to them by various physicians, which, in turn, is

valuable to pharmaceutical manufacturers who can

use that data to more precisely tailor their own

physician-facing marketing practices for new

prescription drugs.

See id. Act 80, however,

circumscribed the use of such data by providing that

certain entities, such as pharmacies, “‘shall not . . .

permit the use of regulated records containing

prescriber-identifiable information for marketing or

promoting a prescription drug.’” Id. at 559 (quoting

Vt. Stat. Ann. tit. 18, § 4631(d)). Act 80 similarly

stated that “[p]harmaceutical manufacturers and

pharmaceutical marketers shall not use prescriberidentifiable information for marketing or promoting a

prescription drug.”

Sorrell, 564 U.S. at 559.

Reviewing this statutory language, the Supreme

Court reasoned that Act 80 created a content-based

restriction by prohibiting “any disclosure when

recipient speakers will use the information for

marketing.” Id. at 564. The Court also found that Act

80’s “second sentence prohibits pharmaceutical

manufacturers from using the information for

marketing” and, therefore, “disfavors marketing, that

is, speech with a particular content.” Id. Mr. Price

argues that § 100905’s restriction on “commercial

filming” is comparable to Act 80’s content-based

restriction on pharmaceutical marketing, struck

down in Sorrell. See Pl.’s Mot. at 25.

Mr. Price has the better argument. Section

100905 and its implementing regulations impose a

content-based restriction on “commercial filming,” a

form of speech. Unlike the municipal ordinance in

Havlak, § 100905 and its implementing regulations

69a

do not apply generically to all commercial activity in

national parks. To the contrary, the permitting

regime applies to filming, a form of expressive speech,

see disc. supra at § III.B.1, and specifically to a type

of filming, “commercial filming.” 54 U.S.C.

§ 100905(a).

Section 100905’s implementing

regulations make this content-based distinction even

more apparent, defining “commercial filming” as the

“recording of a moving image by a person, business,

or other entity for a market audience with the intent

of generating income.” 43 C.F.R. § 5.12. The

application of § 100905’s permitting regime,

therefore, necessarily turns on an assessment of

whether the content of a film was meant to appeal to

a market audience and generate income. See id.

Consider, for example, the enforcement of

§ 100905 against Mr. Price and his film Crawford

Road. See Compl. ¶¶ 43–44. To determine whether

Crawford Road ran afoul of § 100905’s permitting

regime, NPS officials needed to review the film and

determine ex post whether the content Mr. Price

included therein was geared towards a “market

audience” or evinced some “intent of generating

income.” 43 C.F.R. § 5.12. If, however, Mr. Price’s

film was “non-commercial” or happened to feature

only news worthy “information . . . about current

events or . . . of current interest to the public,” id., the

permitting requirement would not apply, see id. at

§ 5.4(a).

In this way, § 100905’s permitting

requirement is comparable to the content-based

regime created by Vermont’s Act 80, which disfavored

the disclosure of prescriber-identifying information

specifically for “marketing,” but not for other

purposes. Sorrell, 564 U.S. at 564.

70a

The Supreme Court’s analysis in City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410

(1993), further reinforces this conclusion.

Discovery Network, the Supreme Court addressed a

First Amendment challenge to a municipal ordinance

that prohibited the distribution of “commercial”

handbills on public property, but permitted the

distribution of “non-commercial” materials, like

newspapers. Id. at 413. The Court found the

ordinance to be content-based:

[T]he very basis for the regulation is the

difference in content between ordinary

newspapers and commercial speech. True,

there is no evidence that the city has acted

with animus toward the ideas contained

within respondents’ publications, but just

last Term we expressly rejected the

argument that discriminatory treatment is

suspect under the First Amendment only

when the legislature intends to suppress

certain ideas. Regardless of the mens rea of

the city, it has enacted a sweeping ban on the

use of newsracks that distribute “commercial

handbills,” but not “newspapers.” Under the

city’s newsrack policy, whether any

particular newsrack falls within the ban is

determined by the content of the publication

resting inside that newsrack. Thus, by any

commonsense understanding of the term, the

ban in this case is “content based.”

Id. at 429 (quotations omitted). In much the same way,

§ 100905 and its implementing regulations impose a

content-based restriction on commercial filming. See

71a

Barr v. Am. Ass’n of Political Consultants, Inc., 140 S.

Ct. 2335, 2347 (2020) (“In Sorrell, this Court held that

a law singling out pharmaceutical marketing for

unfavorable treatment was content-based.”); Reed, 576

U.S. at 169 (“For example, a law banning the use of

sound trucks for political speech—and only political

speech—would be a content-based regulation, even if

it imposed no limits on the political viewpoints that

could be expressed.”).

b) Section 100905 And Its Implementing

Regulations

Not

Satisfy

Heightened

Constitutional Scrutiny

As the foregoing analysis demonstrates,

§ 100905 and its implementing regulations impose a

content-based restriction on expressive speech in

traditional public forums. The Court, therefore, must

evaluate the permitting regime they create for

commercial filming under strict scrutiny.

See

Minnesota Voters All., 138 S. Ct. at 1885; AAPC, 140

S. Ct. at 2347. To survive strict scrutiny, “the

Government [must] prove that the restriction

furthers a compelling interest and is narrowly

tailored to achieve that interest.” Reed, 576 U.S. at

171 (quotation omitted). Defendants do not even

attempt to argue that § 100905 and its implementing

regulations meet this standard. See Defs.’ Mot. at 21–

33 (addressing only intermediate scrutiny); Defs.’

Opp’n at 15–21 (same). They do not meet this

standard.

As an initial matter, Defendants contend that

§ 100905 furthers the government’s interest in

collecting compensation from commercial filmmakers

72a

and thereby raising funds for the National Park

Service. See Defs.’ Mot. at 27–28. But, as noted,

Defendants make no argument that this

governmental interest in revenue collection could

satisfy strict scrutiny. Nor would such an argument

succeed. Section 100905 requires the imposition of a

“fair market” permit fee for commercial filming,

assessed in addition to payment for “any costs

incurred as a result of filming activities or similar

projects, including administrative and personnel

costs.” 54 U.S.C. § 100905(a), (b). Put differently,

§ 100905 mandates payment not only for the

incidental costs of filming and permit administration,

but for the act of filming itself. In accordance

therewith, the DOI’s implementing regulations

require a stand-alone “location fee” for commercial

filming, assessed in addition to a payment to cover

any administrative costs incurred. See 43 C.F.R.

§ 5.8(a), (b). This regime is difficult to square with the

longstanding rule that 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. Murdock v.

Com. of Pennsylvania, 319 U.S. 105, 113 (1943).

Moreover, the Supreme Court has specifically rejected

the government’s attempt to justify content-based

restrictions on speech by pointing to a need to raise

revenue. See Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 231 (1987). Instead, “the

State could raise the revenue by taxing [persons]

generally, avoiding the censorial threat implicit in a

tax that singles out” a particular speaker or form of

speech. Minneapolis Star & Tribune Co. v. Minnesota

Com’r of Revenue, 460 U.S. 575, 586 (1983). As such,

any attempt to justify § 100905’s permitting regime

73a

on the basis of a governmental need to raise revenue

is a dead end.

Defendants, however, also offer another

governmental interest that merits attention:

protecting national park land from resource depletion

and damage.

See Defs.’ Mot. at 28; see also

Commercial Filming & Similar Projects & Still

Photography Activities, 78 Fed. Reg. 52,087-02,

52,090 (noting that national parks have “limited

space, fragile resources, or experience high visitation”

and emphasizing the “need to protect nesting areas of

threatened or endangered species during certain

times of the year”). Protecting national park land and

the resources it contains is a substantial

governmental interest. See Boardley, 615 F.3d at 519

(collecting cases). Mr. Price does not challenge the

validity of this interest, but instead questions the

tailoring of § 100905 and its implementing

regulations to this governmental goal. Specifically,

Mr. Price argues that “there is no direct connection

under [§ 100905] between the burden on commercial

filming and its effect on property managed by DOI”

and, further, that § 100905 “uniquely burdens

commercial filming not only when there is no greater

impact on federal lands than noncommercial filming

. . . but also in instances when it has less of a burden.”

Pl.’s Mot. at 26 (emphasis in original).

The D.C. Circuit’s decision in Boardley v. U.S.

Dep’t of Interior, 615 F.3d 508 (D.C. Cir. 2010),

provides considerable support for Mr. Price’s

argument. In Boardley, the D.C. Circuit evaluated a

First Amendment challenge to two NPS regulations

that prohibited “‘[p]ublic assemblies, meetings,

74a

gatherings, demonstrations, parades and other public

expressions of views’ and ‘[t]he sale or distribution of

. . . printed matter’ within park areas, unless ‘a permit

[authorizing the activity] ha[d] been issued.’” Id.; see

also 36 C.F.R. §§ 2.51, 2.52. The D.C. Circuit found

that even under intermediate scrutiny, these

regulations violated the First Amendment. See

Boardley, 615 F.3d at 525.

First, the D.C. Circuit in Boardley concluded

that the NPS regulations “‘burden[ed] substantially

more speech than [wa]s necessary’ to achieve the

government’s substantial interests” in protecting

national park lands and resources from damage. Id.

at 519 (quoting Ward v. Rock Against Racism, 491

U.S. 781, 798–99 (1989)). A “crucial problem” with

the NPS regulations was their over-inclusivity, as the

permitting requirements “applied to groups of all

sizes.” Boardley, 615 F.3d at 521. On this point, the

D.C. Circuit reasoned: “The government asserts

interests in preventing overcrowding, protecting park

facilities,

protecting

visitors,

and

avoiding

interference with park activities. But why are

individuals and members of small groups who speak

their minds more likely to cause overcrowding,

damage park property, harm visitors, or interfere

with park programs than people who prefer to keep

Id. at 522. The D.C. Circuit further

quiet?”

emphasized that “[t]he fit between means and ends,

[was] far more precise when the NPS regulations

[we]re applied to large groups.” Id. In short, the NPS

permitting requirements for all demonstrations and

distribution of printed material imposed “too high a

cost, namely, by significantly restricting a substantial

75a

quantity of speech that does not impede the NPS’s

permissible goals.” Id. at 523 (quotation omitted).

Next, the D.C. Circuit in Boardley also

considered the rule that “a time, place, or manner

regulation must ‘leave open ample alternatives for

communication.’” Id. at 524 (quoting Forsyth County,

505 U.S. at 130). Here, the D.C. Circuit explained

that the possible “alternatives” must be available to

potential speakers “within the forum in question.”

Boardley, 615 F.3d at 524 (quotation omitted). The

NPS regulations at issue in Boardley flatly failed this

test. Under those regulations, anyone who wanted to

distribute leaflets or host an assembly in a national

park needed to first obtain a permit. See id. Indeed,

the regulations “completely excluded” any person

planning to engage in such expression within a

national park without a permit, leaving no options for

these speakers other than acquiescence to the

permitting regime or withholding their speech

altogether. Id. at 525 (quoting Cmty. for Creative

Non-Violence v. Turner, 893 F.2d 1387, 1393 (D.C.

Cir. 1990)). It was no cure that such individuals could

engage in speech on other properties near to the

national parks, as this was not a viable “intra-forum

alternative.” Boardley, 615 F.3d at 525.

In this case, § 100905 and its implementing

regulations suffer from flaws remarkably similar to

those which rendered the NPS regulations

unconstitutional in Boardley. First, § 100905 and its

implementing regulations are overinclusive. On their

face, § 100905 and its implementing regulations flatly

require a paid permit for all “commercial filming.” 54

U.S.C. § 100905(a); 43 C.F.R. §§ 5.1, 5.8. This regime,

76a

therefore, requires “individuals and small groups to

obtain permits before engaging in expressive

activities,” just the same as it does for large groups

with heavy and potentially disruptive filming

equipment. Boardley, 615 F.3d at 525; see also

Commercial Filming & Similar Projects & Still

Photography Activities, 78 Fed. Reg. 52,087-02,

52,090 (“There is no basis for an exclusion based on

crew size or amount of equipment under this

statute.”). Defendants offer no explanation for how

the broad sweep of this permitting regime is

sufficiently tailored to the government’s goal of

protecting federal land. See Defs.’ Mot. at 29–30;

Defs.’ Opp’n at 17– 18. Mr. Price, for example, filmed

Crawford Road with no more than a camera tripod, a

microphone, and a crew of no more than four people.

See Compl. ¶¶ 38–39. Restricting Mr. Price’s filming

activity has no clear connection to the government’s

land conservation goals, yet Mr. Price was still

threatened with a criminal sanction under § 100905

and its implementing regulations for filming without

a permit. See id. ¶ 43.

As the amici in this case persuasively argue,

the overinclusive sweep of § 100905’s permitting

regime is particularly problematic given the ease of

filming in the modern technological age. See Br. of

Amici Curiae, ECF No. 29, at 5–12. Section 100905’s

legislative history reveals a Congressional focus, over

twenty years ago, on “major motion pictures” filmed

in national parks, such as “Star Wars” and “Dances

with Wolves.” S. Rep. 106-67, at 3 (1999). Yet,

Congress did not limit the reach of § 100905 to these

“major” productions alone, but instead drew the line

only at “commercial” filming. 54 U.S.C. § 100905(a).

77a

Now, over two decades after the passage of § 100905,

any individual may easily enter a national park and

shoot a high-quality video at will using nothing more

than a smart phone. See Br. of Amici Curiae, ECF

No. 29, at 7. And with the expansion of mass-media

outlets like YouTube, such filmmakers may

expediently disseminate and monetize those videos on

the internet. Yet, so long as these modern filmmakers

attempt to commercially market their videos,

§ 100905 and its implementing regulations require a

permit, without any regard for the effect that their

filming might have on the preservation of national

park land. See 43 C.F.R. § 5.12.

Relatedly, § 100905’s permitting regime also

excludes non-commercial filming without any

consideration for the damage that activity might also

cause to national parks. See Pl.’s Mot. at 41. For

example, a “non-commercial” filming production

carried out by a non-profit organization or a news

crew would escape the reach of § 100905’s permitting

regime, even if those groups used heavy filming

equipment that damaged federal land. See 54 U.S.C.

§ 100905(a). Or consider the case of Mr. Price and his

forthcoming film Ten Roads. If Mr. Price shoots Ten

Roads at Yorktown Battlefield by himself, with no

more than a hand-held camera, he would still need a

permit, so long as the film was “commercial.” See 43

C.F.R. § 5.2(a). But what if instead Mr. Price

produced Ten Roads as a private, non-commercial

film, using heavy filming equipment and a crew of

thirty workers? In such a case, Mr. Price’s noncommercial film would pose a far greater threat to

federal land, but could nonetheless proceed without a

permit under § 100905. These under- and over78a

inclusivity problems demonstrate the obvious

tailoring defects of § 100905’s restriction on

commercial filming. See, e.g., Gilleo, 512 U.S. at 51

(addressing the First Amendment problem of

underinclusive regulations); Simon & Schuster, Inc.

v. Members of New York State Crime Victims Bd., 502

U.S. 105, 121 (1991) (addressing the First

Amendment problem of overinclusive regulations).

Indeed, the D.C. Circuit struck down a similar

NPS permitting regime in Boardley for this very

reason. See Boardley, 615 F.3d at 521–25. It is also

notable that in response to the Boardley decision, the

NPS regulations at issue were revised to include a

“small group permit exception” for expressive

activities “involving 25 persons or fewer.” 36 C.F.R.

§ 2.51(b)(1); id. § 2.52(b)(1).

This small group

exception responded directly to the D.C. Circuit’s

holding that “[r]equiring individuals and small

groups to obtain permits before engaging in

expressive activities within designated ‘free speech

areas’ (and other public forums within national parks)

violates the First Amendment.” Boardley, 615 F.3d at

525. As Mr. Price has demonstrated here, however,

§ 100905 and its implementing regulations contain no

such exception for individual commercial filmmakers

or small groups of commercial filmmakers.

It also bears mentioning that § 100905 and its

implementing regulations do not leave open any

adequate alternatives for commercial filmmakers

who would like to film on national park grounds

without a permit. See Pl.’s Mot. at 32–33. As

explained above, the permitting regime applies to

“any area of land and water administered by the

79a

Secretary [of the Interior], acting through the

Director [of the National Park Service], for park,

monument, historic, parkway, recreational, or other

purposes.” 54 U.S.C. § 100501 (defining a “system

unit”); see also id. § 100102(1)–(6). Consequently,

commercial filmmakers who would like to shoot on

national park grounds must either obtain a permit or

cancel their filming plans altogether. Mr. Price’s

decision to halt production of his forthcoming film on

the Saltville Massacre, absent a permit, is a

paradigmatic example of this scenario. See Compl.

¶ 54. Tellingly, Defendants argue that “with a

permit, [filmmakers] would have multiple alternative

channels to film [their] movie[s], most obviously

applying for a permit . . .” Defs.’ Mot. at 33 (emphasis

added).

Defendants also later suggest that

filmmakers could simply “choose not to generate

income from the film.” Defs.’ Opp’n at 20. But these

are not “alternatives.” They are simply ways of

complying with § 100905’s permitting regime. At

bottom, § 100905 and its implementing regulations

leave commercial filmmakers with no “intra-forum”

alternative, but rather a binary proposition: either

obtain a permit or forgo commercial filming in a

national park. Boardley, 615 F.3d at 524 (quoting

Turner, 893 F.2d at 1393). This lack of alternative

channels is impermissible under First Amendment

scrutiny, as the D.C. Circuit also made clear in

Boardley. See id.

****

As the foregoing analysis shows, § 100905 and

its implementing regulation impose a content-based

restriction on speech that does not pass constitutional

80a

muster. Just as the NPS regulations struck down in

Boardley, § 100905’s permitting regime for

commercial filming “‘burden[s] substantially more

speech than is necessary’ to achieve the government’s

substantial interests” in protecting national park

lands and resources from damage. Boardley, 615 F.3d

at 519 (quoting Ward, 491 U.S. at 798–99). Section

100905 and its implementing regulations also fail to

leave open any alternative channels for commercial

filmmakers who would like to film in national parks

without a permit. Boardley, 615 F.3d at 524 (quoting

Turner, 893 F.2d at 1393). Accordingly, Mr. Price has

established that the permit requirement for

commercial filming imposed by 54 U.S.C. § 100905, 43

C.F.R. Part 5, and 36 C.F.R. § 5.5 violates the First

Amendment.2 The Court may, therefore, enter a

“judgment on the merits” in Mr. Price’s favor on his

First Amendment claim. Murphy v. Dep’t of Air

Force, 326 F.R.D. 47, 49 (D.D.C. 2018) (quotation

omitted); see also Compl. ¶¶ 71–80.

Equitable Relief

The last remaining issue for the Court to

consider is the equitable relief requested by Mr. Price.

Mr. Price seeks two forms of equitable relief: (1) a

declaratory judgment stating that the requirements

in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and 36 C.F.R.

§ 5.5 that those engaged in “commercial filming” must

2 Neither party proposes severing any portion of the commercial

filming restrictions set forth in 54 U.S.C. § 100905, 43 C.F.R.

Part 5, or 36 C.F.R. § 5.5. The Court finds no basis for doing so

here. Boardley, 615 F.3d at 525 (“Neither party has argued that

we should sever the regulations in order to leave part of them

intact, and we perceive no basis for doing so.”).

81a

obtain permits and pay fees are unconstitutional, and

(2) a permanent injunction enjoining the permit and

fee requirements for commercial filming in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and

enjoining prosecution and the imposition of criminal

liability thereunder. See Compl. at Prayer for Relief,

¶¶ A, B; Pl.’s Mot. at 45. Both forms of equitable relief

are appropriate here.

First, the Court will enter a declaratory

judgment stating that 54 U.S.C. § 100905, 43 C.F.R.

Part 5, and 36 C.F.R. § 5.5 impose an unconstitutional

permitting requirement on “commercial filming.” “In

a case of actual controversy within its jurisdiction,” a

federal court “may declare the rights and other legal

relations of any interested party seeking such

declaration.” 28 U.S.C. § 2201(a). “To invoke the

Declaratory Judgment Act, a plaintiff must

demonstrate that there is a substantial controversy,

between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.” United Gov’t

Sec. Officers of Am., Local 52 v. Chertoff, 587 F. Supp.

2d 209, 222 (D.D.C. 2008) (quotation omitted).

Mr. Price meets this standard. As set forth

above, Mr. Price has presented an actual Article III

“case” over which this Court has jurisdiction. See

disc. supra at § III.A. Moreover, the Court has also

concluded that the permitting regime for “commercial

filming” mandated by 54 U.S.C. § 100905 and its

implementing regulations is an unconstitutional

restriction on speech protected by the First

Amendment. See disc. supra at § III.B. Declaratory

relief is appropriate in such a case, where the plaintiff

82a

demonstrates on the merits, as Mr. Price has done

here, that a law violates the First Amendment. See

e.g., Boggs v. Bowron, 842 F. Supp. 542, 547 (D.D.C.

1993), aff’d, 67 F.3d 972 (D.C. Cir. 1995) )(“[C]ivil

actions for declaratory relief against criminal

prosecution have become a common method of

challenging the constitutionality of federal statutes,”

particularly “where First Amendment rights are at

stake.”); Nat’l Ass’n of Manufacturers v. United

States Sec. & Exch. Comm’n, No. 1:13-CV-00635KBJ, 2017 WL 3503370, at *1 (D.D.C. Apr. 3, 2017)

(issuing a declaratory judgment against a statute and

regulations in violation of the First Amendment).

The Court will also grant Mr. Price’s motion for

a permanent injunction enjoining the permit and fee

requirements for commercial filming in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and

enjoining prosecution and the imposition of criminal

liability thereunder. See Pl.’s Mot. at 45. “According

to well-established principles of equity, a plaintiff

seeking a permanent injunction must satisfy a fourfactor test before a court may grant such relief. A

plaintiff must demonstrate: (1) that it has suffered an

irreparable injury; (2) that remedies available at law,

such as monetary damages, are inadequate to

compensate for that injury; (3) that, considering the

balance of hardships between the plaintiff and

defendant, a remedy in equity is warranted; and (4)

that the public interest would not be disserved by a

permanent injunction.” eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 391 (2006). “The decision to

grant or deny permanent injunctive relief is an act of

equitable discretion by the district court.” Id.; see also

83a

Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145

F.3d 1399, 1408 (D.C. Cir. 1998).

Mr. Price has satisfied this threshold. First, the

Court has already concluded that Mr. Price has

successfully shown on the merits that 54 U.S.C.

§ 100905 and its implementing regulations violate the

First Amendment. See disc. supra at § III.B. A

permanent injunction, however, “does not follow from

success on the merits as a matter of course.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008).

And while “[t]he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably

constitutes irreparable injury,” Elrod v. Burns, 427

U.S. 347, 373 (1976), the D.C. Circuit has charted a

more discerning course when considering injunctive

relief for First Amendment injuries. To establish

“irreparable injury” in the context of free speech

claims, the movant must also “demonstrate a

likelihood that they will engage in the

constitutionally protected expressive conduct.”

Chaplaincy of Full Gospel Churches v. England, 454

F.3d 290, 303 (D.C. Cir. 2006). But Mr. Price still

clears this bar. As discussed above, the record in this

case demonstrates Mr. Price’s tangible plan to shoot

a commercial film about the Saltville Massacre at two

different national park locations. See United States

v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 29,

2019), ECF No. 20-1 (Price Decl.), ¶¶ 2–4. These

locations are proximate to Mr. Price’s residence, and

he had just recently produced a similar film on one of

these sites in the past. See Compl. ¶¶ 38–39. Mr.

Price, however, stopped his commercial filming plans

because

the

unconstitutional

permitting

restrictions imposed by § 100905. See United States

84a

v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 29,

2019), ECF No. 20-1 (Price Decl.), ¶ 4. Mr. Price has,

therefore, established an irreparable injury caused by

§ 100905 and its implementing regulations. See, e.g.,

Henderson v. Lujan, 964 F.2d 1179, 1181 (D.C. Cir.

1992) (affirming injunction of NPS regulation in

violation of the First Amendment); Guffey v. Duff, 459

F. Supp. 3d 227, 255 (D.D.C. 2020); Am. Civil

Liberties Union v. Mineta, 319 F. Supp. 2d 69, 87

(D.D.C. 2004). It is also clear that a legal remedy, i.e.,

a monetary award, would do nothing to permit Mr.

Price the ability to conduct his filming absent

§ 100905’s permitting restrictions. See eBay Inc., 547

U.S. at 391; Pursuing Am.’s Greatness v. Fed.

Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016).

Defendants do not contest this point.

Finally, Mr. Price has shown that the “balance

of the hardships” between the parties, as well as the

public interest, weigh in favor of a permanent

injunction. eBay Inc., 547 U.S. at 391. Here, the

hardship imposed upon Mr. Price by § 100905’s

unconstitutional permitting regime is consonant with

the strong public interest in “always . . . prevent[ing]

the enforcement of unlawful speech restrictions.”

Guffey, 459 F. Supp. 3d at 255 (citing Lamprecht v.

FCC, 958 F.2d 382, 390 (D.C. Cir. 1992) (“[A] policy

that is unconstitutional would inherently conflict

with the public interest.”)). And given the broad scope

of § 100905, the statute imposes a chilling effect on

the expressive activities of a wide swath of national

park visitors. See disc. supra at § III.B.3.b.

Consequently, there is a significant equitable interest

in avoiding the unconstitutional application and

enforcement of § 100905 and its implementing

85a

regulations. See Pursuing Am.’s Greatness, 831 F.3d

at 511.

Moreover, the governmental and public

interests in favor of § 100905 and its implementing

regulations are insufficient to counterbalance such a

chilling effect. While the government and the public

do have an interest in preserving federal lands, such

an interest does not justify a widely overinclusive law

that infringes upon free expression. See Boardley,

615 F.3d at 525; disc. supra at § III.B.3.b. And, as Mr.

Price notes, “filming and photography . . . had long

proceeded on federal lands before [the] enactment” of

§ 100905. Pl.’s Mot. at 44; see also S. Rep. 106-67, at

3 (1999) (noting prior motion pictures filmed on

national park lands). Moreover, the National Park

Service has also shown itself capable of enacting

regulations that preserve park resources without

overly burdening expressive activity, and may

continue to do so in ways that do not run afoul of the

First Amendment. See, e.g., 43 C.F.R. §§ 3.3, 3.11; 36

C.F.R. §§ 2.51, 2.52. This leaves, then, only the

government’s interest in raising revenue for federal

land conservation. See 43 C.F.R. § 5.12 (allocating

commercial filming fees “for the use of Federal lands

or facilities”). The government certainly has an

interest in collecting money for such a public use.

But, as discussed, Congress may not tax the exercise

of a fundamental right, see Murdock, 319 U.S. at 113,

and, here, Congress could instead levy taxes without

targeting any particular form of speech, see

Minneapolis Star, 460 U.S. at 586. Consequently, the

government’s interest in raising revenue does not tip

the balance of the equities against an injunction of

§ 100905 and its implementing regulations. To the

86a

contrary, the balance of the equities favors such an

injunction.

For these reasons, the Court will issue a

permanent injunction enjoining the permit and fee

requirements for commercial filming in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and

enjoining prosecution and the imposition of criminal

liability thereunder. The Court issues this injunction

in an exercise of is discretionary authority and after a

complete and independent review of the record and a

balancing of the equities. See Winter, 555 U.S. at 32.

The Court also notes that beyond the merits of Mr.

Price’s First Amendment claim, Defendants have

presented no argument specifically against the

propriety of injunctive relief. Defendants’ reticence

on this issue further reinforces the Court’s

independent conclusion that a permanent injunction

is appropriate.

IV.

CONCLUSION

For the reasons set forth in this Memorandum

Opinion, the Court DENIES Defendants’ Motion for

Judgment on the Pleadings. See ECF No. 18. In turn,

the Court GRANTS Mr. Price’s Cross-Motion for

Judgment on the Pleadings. See ECF No. 25.

Accordingly, the Court will issue a declaratory

judgment stating that the requirements in 54 U.S.C.

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5 that

those engaged in “commercial filming” must obtain

permits and pay fees are unconstitutional under the

First Amendment. The Court will also enter a

permanent injunction enjoining the permit and fee

requirements for commercial filming in 54 U.S.C.

87a

§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and

enjoining prosecution and the imposition of criminal

liability thereunder. 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.3

An appropriate

Memorandum Opinion.

Order

accompanies

this

Dated: January 22, 2021

/s/

COLLEEN KOLLARKOTELLY

United States District

Judge

For example, Defendants suggest that an “alternative”

available to commercial filmmakers wishing to operate without

a permit is “filming with a smaller crew and equipment with a

lighter footprint.” Defs.’ Opp’n at 20. The logic behind this

proposal is sound and meaningfully connected to the goal of land

conservation. Unfortunately, § 100905 and its implementing

regulations, in their current form, contain no such exemption for

filmmakers with “lighter footprints.” As explained above, even

the most non-intrusive filmmaker must obtain a permit, so long

as his or her film is “commercial.” 54 U.S.C. § 100905(a); 43

C.F.R §§ 5.1, 5.8.

88a

APPENDIX C

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________

No. 21-5073

September Term, 2022

1:19-cv-03672-CKK

Filed On: October 21, 2022

Gordon M. Price,

Appellee

Merrick B. Garland, in his

official capacity as Attorney

General of the United States of

America, et al.,

Appellants

BEFORE:

Srinivasan, Chief Judge; Henderson,

Millett, Pillard, Wilkins, Katsas, Rao,

Walker, Childs, and Pan*, Circuit

Judges; and Ginsburg and Tatel, Senior

Circuit Judges

89a

ORDER

Upon consideration of appellee's petition for

rehearing en banc, the response thereto, and the

absence of a request by any member of the court for a

vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

*Circuit Judge Pan did not participate in this matter.

90a

APPENDIX D

TITLE 54-NATIONAL

RELATED PROGRAMS

PARK

SERVICE

AND

§ 100905. Commercial filming

(a) Commercial filming fee.

(1) In general. – The Secretary shall require a

permit and shall establish a reasonable fee for

commercial filming activities or similar projects in a

System unit. The fee shall provide a fair return to the

United States and shall be based on the following

criteria:

(A)

The number of days the filming

activity or similar project takes place in the System

unit.

(B)

the System unit.

The size of the film crew present in

(C)

The amount and

equipment present in the System unit.

type

(2) Other factors. – The Secretary may include

other factors in determining an appropriate fee as the

Secretary considers necessary.

(b) Recovery of costs. – The Secretary shall collect any

costs incurred as a result of filming activities or similar

projects, including administrative and personnel costs.

All costs recovered shall be in addition to the fee

assessed in subsection (a).

91a

(1)

In general. – Except as provided in

paragraph (2), the Secretary shall not require a permit

or assess a fee for still photography in a System unit if

the photography takes place where members of the

public are generally allowed. The Secretary may

require a permit, assess a fee, or both, if the

photography takes place at other locations where

members of the public are generally not allowed, or

where additional administrative costs are likely.

(2) Exception. – The Secretary shall require and

shall establish a reasonable fee for still photography

that uses models or props that are not a part of the

site’s natural or cultural resources or administrative

facilities.

(d) Protection of resources. – The Secretary shall not

permit any filming, still photography or other related

activity if the Secretary determines that—

(1) there is a likelihood of resource damage;

(2) there would be an unreasonable disruption

of the public’s use and enjoyment of the site; or

(3) the activity poses health or safety risks to

the public.

(e) Use of proceeds. –

(1) Fees. – All fees collected under this section

shall be available for expenditure by the Secretary,

without further appropriation, at the site where the

costs are collected and shall remain available until

expended.

92a

(2) Costs. – All costs recovered under this

section shall be available for expenditure by the

Secretary, without further appropriation, at the site

where the costs are collected and shall remain

available until expended.

(f) Processing of permit applications. – The Secretary

shall establish a process to ensure that the Secretary

responds in a timely manner to permit applicants for

commercial filming, still photography, or other

activity.

93a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.