Amicus Curiae Brief — Gordon M. Price, Petitioner v. Merrick B. Garland, Attorney General, et al.
Supreme Court briefFeb 16, 2023
Ask Donna
What actually matters in this document.
Text
No. 22-665
IN THE
Supreme Court of the United States
GORDON PRICE,
Petitioner,
v.
MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE UNITED STATES, DEBRA A.
HAALAND, IN HER OFFICIAL CAPACITY AS SECRETARY
OF THE INTERIOR, AND SHAWN BENGE, IN HIS OFFICIAL
CAPACITY AS DEPUTY DIRECTOR EXERCISING THE AUTHORITY OF DIRECTOR OF THE NAT’L PARK SERVICE,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA
BRIEF OF AMICI CURIAE NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION
AND 13 OTHER ORGANIZATIONS
IN SUPPORT OF PETITIONER
Gregg P. Leslie
Zachary Cormier
First Amend. Clinic
Arizona State Univ.
Sandra Day O’Connor College of Law
111 E. Taylor St.
Phoenix, AZ 85004
Mickey H. Osterreicher
Counsel of Record
Alicia Wagner Calzada
National Press Photographers Assoc.
70 Niagara Street
Buffalo, NY 14202
(716) 983-7800
lawyer@nppa.org
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI................................................ 1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT ......................................................... 1
ARGUMENT ............................................................... 3
I.
It is self-evident that filming is included in this
Courts’ prior holdings protecting speech at every
stage of its creation and distribution................... 3
II. The disparate treatment of similar activities,
particularly between commercial and noncommercial filming, is not a reasonable
restriction. ............................................................ 9
A. The distinctions Congress created between
video and still photography are from a
bygone era and the merging of the two
technologies has led to arbitrary and
content-based enforcement.......................... 13
B. Amici’s concerns are not speculative, and
have been evident throughout the history of
enforcement of §100905 and prior rules. .... 15
III. National Parks are public spaces where the First
Amendment protects filming and photography,
and regulations restricting expressive activities
and creating a government tax scheme are not
reasonable. .......................................................... 19
CONCLUSION .......................................................... 23
APPENDIX A - List of Amici .....................................App. 2
ii
TABLE OF AUTHORITIES
Cases
ACLU of Ill. v. Alvarez, 679 F.3d 583
(7th Cir. 2012) ............................................................ 5, 7
Anderson v. City of Hermosa Beach,
621 F.3d 1051 (9th Cir. 2010) ..................................... 7
Animal Legal Def. Fund v. Wasden,
878 F.3d 1184 (9th Cir. 2018) ..................................... 2
Brown v. Entm’t Merchs. Ass'n,
564 U.S. 786 (2011) ............................................... 4, 7, 9
Brown v. Netflix, Inc., 855 F. App'x 61
(2d Cir. 2021) ................................................................ 10
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ..................................................... 18
Ex parte Thompson, 442 S.W.3d 325
(Tex. Crim. App. 2014).................................................. 5
Fields v. City of Philadelphia, 166 F. Supp. 3d 528
(E.D. Pa. 2016)................................................................ 6
Fields v. City of Philadelphia, 862 F.3d 353
(3d. Cir. 2017) ......................................................... 5, 6, 7
Fordyce v. City of Seattle, 55 F.3d 436
(9th Cir. 1995) ................................................................ 5
Forsyth County, Ga. v. Nationalist Movement,
505 U.S. 123 (1992) ..................................................... 18
Galvin v. Hay, 374 F.3d 739
(9th Cir. 2004) ................................................................ 7
Glik v. Cunniffe, 655 F.3d 78
(1st Cir. 2011) ......................................................... 2, 4, 5
Joseph Burstyn v. Wilson,
343 U.S. 495 (1952) ................................................. 3, 10
Leigh v. Salazar, 677 F.3d 892
(9th Cir. 2012) .......................................................... 5, 21
iii
Mayo v. Jarvis, 177 F. Supp. 3d 91
(D.D.C. 2016) ................................................................ 21
Mayo v. Reynolds, 875 F.3d 11
(D.C. Cir. 2017) ............................................................ 21
Nebraska Press Ass’n v. Stuart,
427 U.S. 539 (1976) ....................................................... 8
Perry Educ. Ass'n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) ....................................................... 20
Price v. Garland, 45 F.4th 1059
(D.C. Cir. 2022) .................................................. 2, 19, 23
Reed v. Town of Gilbert, Ariz.,
576 U.S. 155 (2015) ..................................................... 19
Regan v. Time, Inc.,
468 U.S. 641 (1984) ................................................. 4, 19
S.E. Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) ..................................................... 18
Simon & Schuster, Inc. v. Members of New York
State Crime Victims Bd., 502 U.S. 105 (1991) ...... 18
Smith v. City of Cumming, 212 F.3d 1332
(11th Cir. 2000) .............................................................. 5
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ........................................... 4, 18, 22
Turner v. Driver, 848 F.3d 678
(5th Cir. 2017) ............................................................ 5, 7
United States v. Stevens,
559 U.S. 460 (2010) ............................................. 4, 9, 19
W. Watersheds Project v. Michael, 869 F.3d 1189
(10th Cir. 2017) ........................................................ 4, 24
Watchtower Bible & Tract Soc'y of New York, Inc.
v. Vill. of Stratton, 536 U.S. 150 (2002) .................. 18
Statutes
16 U.S.C. § 460l-6d .......................................................... 18
18 U.S.C. § 1865 ........................................................... 3, 11
iv
36 C.F.R. §§ 1.3 ................................................................ 11
54 U.S.C. § 100905 ................................ 1, 9, 14, 15, 16, 22
54 U.S.C.S. § 100905 ....................................................... 22
Other Authorities
About Photography, NATIONAL PARKS SERVICE,
https://www.nps.gov/subjects/photography/
about.htm ........................................................................ 3
Arnold, Billy, Grand Teton park walks back permits
for wedding photographers, JACKSON HOLE NEWS &
GUIDE, March 30, 2022, https://www.jhnewsandguide.com/news/environmental/grandteton-park-walks-back-permits-for-weddingphotographers/article_39c9f60f-52b8-5b35-a5cae46a2ee6c8e8.html ...................................................... 17
Association of Public Television Stations, et al, Joint
Comments of Public Broadcasters before the U.S.
Forest Service, Comments Re: PROPOSED DIRECTIVE
FOR COMMERCIAL FILMING IN WILDERNESS; SPECIAL
USES ADMINISTRATION, FR DOC. 2014-21093,
December 3, 2014, https://s3.amazonaws.com/s3.documentcloud.org/documents/1374934/commen
ts-of-public-broadcasters-commercial.pdf ........ 11, 15
Be an Artist-in-Residence, NATIONAL PARKS SERVICE,
https://www.nps.gov/subjects/arts/air.htm ............ 20
Brief for the United States as Amicus Curiae in
Support of Neither Party, Irizarry v. Yehia, No. 211247, available at 2021 WL 5577946 (10th Cir.
2021) ................................................................................. 8
Complaint, Price v. Barr, No. 19-3672, ECF No. 1
(Dec. 9, 2019) ................................................................ 22
Experts: Ansel Adams photos found at garage sale
worth $200 million, CNN (July 27, 2010),
v
http://www.cnn.com/2010/SHOWBIZ/07/27/ansel.adams.discovery/index.html ........................... 12
First Nat’l Bank of Bos. v. Bellotti,
435 U.S. 765 (1978) ..................................................... 21
Landscape Art and the Founding of the National
Park Service, NATIONAL PARK SERVICE,
https://www.nps.gov/museum/exhibits/landscape_art/
art_founding_nps.html ....................................................... 3
Mansky, Jackie, How Photography Shaped America’s
National Parks, SMITHSONIAN MAGAZINE, June 22,
2016, https://www.smithsonianmag.com/travel/how-photography-shaped-americas-nationalparks-180959262/......................................................... 20
Melting Glaciers, U.S. National Park Service,
https://www.nps.gov/glac/learn/nature/meltingglaciers.htm................................................................... 12
Picturing the Parks, NATIONAL PARK SERVICE,
https://www.nps.gov/subjects/photography/
index.htm ....................................................................... 21
Poole, Gary Andrew, A Couple of Beers and 140
Views of Yellowstone, THE NEW YORK TIMES, Nov.
21, 2008, https://www.nytimes.com/2008/11/21/
travel/escapes/21Rituals.html .................................. 20
Portrait Services CUA- Yellowstone National Park,
https://www.nps.gov/yell/getinvolved/singlesession-portrait-services-cua.htm ............................ 17
Pub L. 106-206, May 26, 2000 ...................................... 13
1
INTEREST OF AMICI 1
Amici are news organizations and associations
that defend First Amendment interests, and who will
be directly affected by the limitations on speech imposed by this case if the D.C. Circuit opinion remains
standing. They represent photographers, videographers and other speakers who recognize that a significant part of their work involves pre-production or
pre-speech activities which, if found to be a noncommunicative part of their work and thus not protected
by the First Amendment, will materially affect how
they exercise their rights and protect their interests.
Individual amici are more fully described in Appendix A.
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
The First Amendment provides a presumptive
right to film in public places. The visual journalists,
photographers, and filmmakers that provide our country with a vast array of critical news, art, and
knowledge rely heavily upon this right. Amici urge
this Court to grant certiorari so as to protect this profoundly important component of speech and find that
the commercial filmmaking statute, 54 U.S.C. §
100905, cannot be so broadly applied.
1 No counsel for a party authored the brief in whole or in part; no
counsel or party made a monetary contribution intended to fund
the preparation or submission of the brief; and, no person other
than the amicus curiae, its members, or its counsel, made such a
monetary contribution. Counsel for respondents received timely
notice of the intent to file this brief as required by Rule 37.2.
2
Currently, eight other circuits have addressed
this issue, and upheld the rule that the act of filmmaking is protected speech. As the First Circuit explained,
the question of whether filming itself is protected
speech is “fundamental and virtually self-evident.”
Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011). As
technology put video cameras in the hands of the majority of Americans over the past two decades, and
more citizens have exercised the right to record in
public spaces, district and circuit courts have had
more occasion to examine the question. Courts have
resoundingly held that the right to record is an inseparable part of the speech process.
When the D.C. Circuit held that filmmaking is
“merely a noncommunicative step in the production of
speech,” Price v. Garland, 45 F.4th 1059, 1068 (D.C.
Cir. 2022), it ventured—without precedent—into a
dangerous area that has long been proscribed by this
Court: restrictions upon the creation of speech. The
D.C. Circuit’s holding violates this Court’s longstanding First Amendment protection of speech at each step
of the process of creation and publication. It further
contravenes every other circuit court that has addressed the question of whether filming is protected
speech. As the Ninth Circuit explained, “[i]t defies
common sense to disaggregate the creation of the
video from the video or audio recording itself.” Animal
Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th
Cir. 2018). In determining that the act of filming is not
protected speech, the D.C. Circuit gave the government the right to restrict filming in public parks and
public forums, even when the restriction is contentbased, or speaker-based.
The creation of visual works such as photographs, paintings and films has always been an
3
integral part of the American experience in national
parks. In the mid-to-late 1800’s, photographers and
other artists published visual records of Yosemite and
Yellowstone. They “captured the grandeur and beauty
of the West,” which led to “a groundswell of support to
preserve the natural wonders that culminated in the
establishment the National Park Service in 1916.” 2
The American people’s appreciation of the beauty and
wonder of these lands would have been stunted without the creation of images depicting them. Yet today,
an amateur videographer who is unobtrusively creating a video of his visit to a national park can film
freely; whereas, an equally unobtrusive professional
filmmaker using the exact same equipment, deemed
by the park to be “commercial,” risks up to six months
in prison. 18 U.S.C. § 1865.
ARGUMENT
I. It is self-evident that filming is included in
this Courts’ prior holdings protecting speech
at every stage of its creation and distribution.
This Court first had the occasion to hold that
“motion pictures are within the ambit of protection” of
the First Amendment seventy years ago in Joseph
Burstyn v. Wilson, 343 U.S. 495, 501 (1952). In the
decades since, a line of jurisprudence evolved to generally apply First Amendment scrutiny to laws that
target “creating, distributing, or consuming speech.”
2 Landscape Art and the Founding of the National Park Service,
NATIONAL PARK SERVICE, https://www.nps.gov/museum/exhibits/landscape_art/art_founding_nps.html; see also, About Photography, NATIONAL PARKS SERVICE, https://www.nps.gov/subjects/photography/about.htm.
4
Brown v. Entm’t Merchs. Ass'n, 564 U.S. 786, 792 n.1
(2011). But this Court has never been expressly asked
to link those two principles and affirm that the creation of a motion picture is protected speech, subject
only to reasonable time, place, and manner restrictions.
The lack of a direct ruling on the question likely
stems from the “fundamental and virtually self-evident nature” of the principle. Glik v. Cunniffe, 655
F.3d at 85. Indeed, without questioning whether the
act of filming is itself speech, this Court has struck
down a law that banned the creation of films depicting
animal cruelty 3 and a law that banned creating photographs of money. 4
Yet even while conceding that filmmaking is
protected by the First Amendment, the D.C. Circuit
improperly divorced the act of filming from the definition of speech. This flies in the face of the principle
that the creation of information is “speech within the
meaning of the First Amendment”, Sorrell v. IMS
Health Inc., 564 U.S. 552, 570 (2011).
The other circuits have broadly applied the protection of the speech creation to acts of filming and
photography in various public spaces, regardless of
whether the intended audience receives the message
at the time the filming takes place. The other circuits
have also unanimously upheld the protected nature of
filming and photography. See W. Watersheds Project
v. Michael, 869 F.3d 1189, 1196 (10th Cir. 2017) (overturning a law that banned photography and other
data collection, and holding that “[i]f the creation of
speech did not warrant protection under the First
3 United States v. Stevens, 559 U.S. 460, 482 (2010).
4 Regan v. Time, Inc., 468 U.S. 641, 643-44, (1984).
5
Amendment, the government could bypass the Constitution by simply proceeding upstream and damming
the source of speech”); Leigh v. Salazar, 677 F.3d 892,
898 (9th Cir. 2012) (holding that a photographer had
a right of access—for the purpose of creating photographs—to a horse round-up on federal lands controlled by the Bureau of Land Management).
In acknowledging complete agreement among
the circuits regarding the First Amendment right to
film public activities of police officers, the Fifth Circuit
held that “the First Amendment protects the act of
making film.” Turner v. Driver, 848 F.3d 678, 688-89
(5th Cir. 2017). See also, Fields v. City of Philadelphia,
862 F.3d 353, 355-56 (3d Cir. 2017) (finding “First
Amendment right to record police activity in public”); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595 (7th
Cir. 2012) (the “act of making an audio or audiovisual
recording is necessarily included within the First
Amendment’s guarantee of speech and press rights as
a corollary of the right to disseminate the resulting
recording.”); Glik v. Cunniffe, 655 F.3d 78, 82-83 (“the
First Amendment protects the filming of government
officials in public spaces”); Smith v. City of Cumming,
212 F.3d 1332, 1333 (11th Cir. 2000) (there is a First
Amendment right to record matters of public interest); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th
Cir. 1995) (same). The highest criminal court in Texas
has also rejected the suggestion that taking a picture
was merely pushing a button and not communicative.
Ex parte Thompson, 442 S.W.3d 325, 331, 337 (Tex.
Crim. App. 2014) (holding that “a person's purposeful
creation of photographs and visual recordings is entitled to the same First Amendment protection as the
photographs and visual recordings themselves).
6
In Fields, the Third Circuit rejected a problematic district court holding about the nature of contentcreation. The District Court for the Eastern District of
Pennsylvania had “decline[d] to create a new First
Amendment right for citizens to photograph officers
when they have no expressive purpose such as challenging police actions.” Fields v. City of Philadelphia,
166 F. Supp. 3d 528, 542 (E.D. Pa. 2016). Specifically,
the district court found that “photographing police is
not, as a matter of law, expressive activity.” Id. at 538.
In reversing, the Third Circuit explained that for the
First Amendment’s protection of “actual photos, videos, and records” to have any meaning, the First
Amendment “must also protect the act of creating that
material.” Fields v. City of Philadelphia, 862 F.3d 353,
358 (3d. Cir. 2017). “There is no practical difference
between allowing police to prevent people from taking
recordings and actually banning the possession or distribution of them.” Id. (citations omitted). To say that
the protection of expressive speech does not extend to
the acts which create such speech is as absurd as finding that a right to scuba dive does not cover the use of
an oxygen tank.
Central to the Third Circuit’s reasoning in
Fields was the logical notion that “[t]o record what
there is the right for the eye to see or the ear to hear
corroborates or lays aside subjective impressions for
objective facts. Hence to record is to see and hear more
accurately.” Id. at 359. Thus, where and what one has
the right to see or hear, one has the right to record,
because recording is simply seeing and hearing more
accurately. Without fully fleshing out the outer
bounds of this right, the Third Circuit noted that the
right to record may be subject to reasonable time,
7
place, and manner restrictions. Id. at 360 (citation
omitted).
Accordingly, “[t]here is no fixed First Amendment line between the act of creating speech and the
speech itself.” Turner v. Lieutenant Driver, 848 F.3d
at 689. Whether a restriction “applies to creating, distributing, or consuming speech makes no difference”;
all such restrictions burden speech and are suspect.
Brown v. Entm’t Merchs. Ass’n, 564 U.S. at 793 n.1;
see also Alvarez, 679 F.3d at 595 (7th Cir. 2012) (“The
act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the
right to disseminate the resulting recording”).
The circuits have also declined to “disconnect
the end product from the act of creation,” see, e.g., Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061–
62 (9th Cir. 2010), when forms of speech other than
filming and photography are involved, concluding that
it makes no difference whether the audience is nearby
when the speech is created. For example, the Ninth
Circuit upheld the First Amendment right to protest
in a national park even though “it ha[d] become clear
that they were not trying to communicate with an onsite audience.” Galvin v. Hay, 374 F.3d 739, 749 (9th
Cir. 2004). In doing so, the Ninth Circuit affirmed the
importance of “individual choice of both communicative aspects, message and manner of presentation,”
and this Court’s mandate that courts “presume that
speakers, not the government, know best both what
they want to say and how to say it." Id. at 750.
Even the U.S. government agrees that the act
of recording is expressive. In the 2021 appeal of Irizarry v Yehia to the Tenth Circuit, the U.S. Department of Justice filed an amicus brief explaining its
8
position that “[t]he First Amendment generally protects recordings as expressive works and, separately,
protects the ability to record matters of public interest.” See Brief for the United States as Amicus Curiae
in Support of Neither Party, Irizarry v. Yehia, No. 211247, available at 2021 WL 5577946 (10th Cir. 2021).
While the government’s main concern was how restrictions in this area affect the credibility of the criminal justice system, recordings of all matters of public
concern could be at risk if the D.C. Circuit decision is
allowed to stand. The Department asserted that protecting the right to record also “extends protections to
gathering information about the government’s public
activities, particularly in the policing context,” because “[p]rotecting the free flow of information about
the criminal justice system ultimately ‘guards against
the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public
scrutiny and criticism.’” Id. at 7 (quoting Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 559-560 (1976) (citation omitted)). While, in Irizarry, the Department
asked the Tenth Circuit to “hold that the First Amendment protects the right to record police officers performing their duties in public,” see Irizarry amicus, supra, at 8, the D.C. Circuit’s opinion in the instant case
threatens to undermine the status that “every Court
of Appeals to consider this issue has held that the
First Amendment protects the right to record public
police activity.”
The array of cases above indicates that these
issues of the bounds of expressive speech are recurring, resolution of them is important, and the instant
petition is the perfect vehicle for this Court to address
the questions. The implications of this case will be
profound. If the D.C. Circuit’s opinion that the act of
9
filming or photographing can be disaggregated from
expression prevails over the clearly established protections provided by eight other circuit courts, such
opinion may be used to roll back or undermine the
growing body of law protecting expressive rights.
II. The disparate treatment of similar activities,
particularly between commercial and noncommercial filming, is not a reasonable restriction.
Under § 100905, a tourist with a large camera
and a tripod can set up anywhere the public is allowed, and create pictures and video all day long. 54
U.S.C.S. § 100905. But a videographer standing next
to that tourist, who later profits from video created
and produced on their cell phone, must obtain a permit weeks in advance, secure an insurance policy, 43
C.F.R. 5.7, and if more than a couple of people are involved, pay a fee. 43 C.F.R. 5.8. 5 In favoring one over
the other, Congress made a value judgment on what
can and cannot be filmed without prior permission – a
“startling and dangerous” proposition. Stevens, 559
U.S. at 470.
As this Court has explained, the protection of
discourse on public matters firmly extends to entertainment, in part because “it is difficult to distinguish
politics from entertainment, and dangerous to try.”
Brown v. Entm't Merchants Ass'n, 564 U.S. at 790
(“Everyone is familiar with instances of propaganda
through fiction. What is one man's amusement,
The amount of the fees is set out on the NPS website.
https://www.nps.gov/aboutus/news/commercial-film-and-photopermits.htm.
5
10
teaches another's doctrine.”). Likewise, the for-profit
status of a communication has no bearing on its protections under the First Amendment. Documentaries
are core First Amendment speech – and making a
profit has no bearing on existence within the “aegis”
of the First Amendment. See Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 501 (1952).
The distinctions between commercial and noncommercial, and filming and still photography, are illogical for permitting purposes and do not serve a government interest other than taxing the exercise of a
First Amendment right. Even the definitions in the
regulations are devoid of any logical difference between commercial filming and newsgathering. The
regulations define “commercial filming” as filming “for
a market audience with the intent of generating income,” including “feature film, videography, television
broadcast, or documentary, or other similar projects.”
43. C.F.R. § 5.12. Newsgathering is exempt from the
permit requirement and is circuitously defined as
“gather[ing] information of potential interest to a segment of the public, us[ing] editorial skills to turn the
raw materials into a distinct work, and distribut[ing]
that work to an audience.” Id.
Within the media industry, documentary filmmaking is most often categorized as non-commercial
in nature. 6 But the regulations claim that documentary filmmaking is commercial, even though it meets
the definition of “newsgathering.” 43. C.F.R. § 5.12.
The indistinct definitions here indicate that the
6 In copyright law, documentaries are also treated as “editorial”
under the first factor of the “fair use” test, whether such use is of
a commercial nature. Brown v. Netflix, Inc., 855 F. App'x 61, 63
(2d Cir. 2021) (listing decisions that found documentaries to favor the first fair use factor).
11
government will have to review the film to decide
whether filming in question meets the standard of
speech that the government favors. And because the
definitions are so confusing, the determination is subjective—something park and forest managers have
historically been inconsistent and even flat wrong on. 7
The cost of falling on the wrong side of this subjective
determination is up to six months in prison. See 18
U.S.C. § 1865; 36 C.F.R. §§ 1.3, 5.5(a).
The subjective and vague nature of many of
these distinctions also requires officials to search the
subjective mind of photographers and filmmakers who
may have mixed intentions. A photographer may
make a video with the sole intention of posting on
their personal Instagram feed, a promotional use that
does not generate income, but which is an overall
piece of a marketing strategy. Is that commercial or
not? Or they may be filming wildlife in furtherance of
a hobby or interest, but later decide to expand that
hobby into a more formal or professional project. Even
a photographer’s family vacation photos can later be
integrated into a book or personal project, licensed as
stock photography, or used to illustrate an advertisement.
Photographers—both amateur and professional—repeatedly find themselves in unexpected situations where they witness something extraordinary
7 See, Association of Public Television Stations, et al, Joint Com-
ments of Public Broadcasters before the U.S. Forest Service, Comments Re: PROPOSED DIRECTIVE FOR COMMERCIAL FILMING IN
WILDERNESS; SPECIAL USES ADMINISTRATION, FR DOC. 201421093, December 3, 2014 (“Public Television Comments”),
https://s3.amazonaws.com/s3.documentcloud.org/documents/1374934/comments-of-public-broadcasters-commercial.pdf.
12
that later is commercially exploitable. The permit
scheme requires someone in that situation to stop
their activity, obtain a permit (and insurance), and
once acquired, continue their filming—the moment
likely being lost. One only need look at the iconic wilderness images created by Ansel Adams, that are now
worth millions, to realize the immense value of the
“decisive moment.” 8 Images filmed in national parks
may be considered of public interest in a variety of
ways. A video in a commercial project showing nature’s breathtaking panoramas might also be illustrative of the effects of global warming. 9 A wildlife photographer may spend days documenting bumble bees
coming to wildflowers. But if a federally endangered
rusty patched bumble bee lands on a flower and is the
first sighting of that bee in decades, it may result in
an expressive work that gets shared by both national
news outlets and in documentary films. It is entirely
unclear how a photographer, who does not yet know
how their work will eventually be used, is supposed to
navigate the current rule and avoid criminal penalties.
The vagueness of the permitting scheme combined with the absurdity of a subjective intent test
puts photographers and filmmakers in an impossible
position as they try to decide whether they need a permit before they film, afterwards, or if at all. And the
idea that a photographer could capture extraordinary
footage and either be foreclosed from publishing it
8 See Experts: Ansel Adams photos found at garage sale worth
$200 million, CNN (July 27, 2010), http://www.cnn.com/2010/SHOWBIZ/07/27/ansel.adams.discovery/index.html.
9 See, e.g., Melting Glaciers, U.S. National Park Service,
https://www.nps.gov/glac/learn/nature/melting-glaciers.htm
(last visited July 6, 2020).
13
commercially or be required to get permission from
the government to do so, chills the clearly established
First Amendment rights of not only Mr. Price but
those like him to wish to photograph and record on
federal land.
A. The distinctions Congress created
between video and still photography are
from a bygone era and the merging of the
two technologies has led to arbitrary and
content-based enforcement.
Twenty years ago, Congress may have considered 10 “commercial filming” as entailing big, bulky
equipment and large-scale productions that would
have a noticeable impact on a national park and significant administrative burdens. Advances in technology have obliterated those assumptions. Congress
could not predict that modern-day visitors would
shoot, produce and broadcast high resolution digital
video all using a device in their pocket, and by a tap
of their finger would be able to switch between still
and video formats. They also could not have predicted
the way social media has democratized commercial
filming. 11 But that is the reality today, where professional digital single lens reflex (DSLR) cameras can
even capture motion-picture quality video footage and
10 In 2000, Congress required the Secretary of the Interior and
the Secretary of Agriculture “to establish a fee system for commercial filming activities on Federal land, and for other purposes.” Pub L. 106-206, May 26, 2000.
11 See, e.g., “RV ‘vloggers’ fined, threatened with arrest for taking
video in National Park,” https://www.rvtravel.com/rvers-whoshot-video-taken-in-national-park-fined-arrest-threatened/
14
still images simultaneously. 12 As a result, a law that
was originally written to raise fees by obtaining a “fair
return” from a relatively narrow group of park users—
high impact/high budget commercial film productions)—54 U.S.C. § 100905(a)(1), now arbitrarily
places those same expensive permitting requirements
on low impact/low budget film makers who are often
simply shooting for their own expressive purposes
with only a distant possibility of profit.
This produces wild dichotomies. A photographer who shoots a digital still photograph, with the
goal of selling or licensing that single image later,
does not need a permit. But if that same photographer
then flips a switch or pushes a button on the same device and records a 30-second video clip that they hope
to use commercially, they are required to obtain a permit, or be subject to arrest. Often photographers focused on shooting still images will make an on-thespot decision to shoot video, and videographers will
shoot still images to supplement their moving images,
or for entirely different purposes. Any basis for such a
disproportionate distinction in the permit requirement has become a nullity. And in order to determine
whether a person using one of these multi-format
cameras is capturing still photography, or “committing” the crime of commercial filming without a permit, the government will necessarily engage in a review of the content and likely make a judgment based
on that content. These differences are fundamentally
content and speaker-based; the permit and fee is not
required of an amateur filmmaker, but it is required
for a “commercial” filmmaker standing next to the
12https://support.usa.canon.com/kb/index?page=con-
tent&id=ART140776.
15
amateur in the same location, with the same equipment. It applies to a documentarian filming a wildfire,
but not a visual journalist covering news about the
same wildfire. To those who must comply, the permit
scheme applies regardless of whether their presence
is even noticeable by park officials or visitors.
The result of this system is that well-financed,
big-budget filmmakers, and those who are creating
epic projects, will have no problem covering the costs
associated with the permit. But low-budget independent filmmakers, documentarians, and even nature
photographers who tell equally important stories of
wildlife, flora, and the parks themselves, are left wondering if the story they want to share with the world
will also get them arrested, imprisoned, or fined.
Without the right to engage in this “step in the communicative process,” their voices will be silenced and
their stories untold.
B. Amici’s concerns are not speculative, and
have been evident throughout the history
of enforcement of §100905 and prior
rules.
The concerns of amici about prior restraint and
disparate enforcement of §100905 are not speculative.
Even as the implementing regulations were being considered, public broadcasters explained to the U.S. Forest Service how agency officials based film permitting
decisions on whether a public-broadcasting project
met their subjective interpretation of “commercial,”
rather than on its environmental impact. 13 Commenters gave several examples of U.S. Forest Service and
13 See “Public Television Comments” at 9.
16
NPS decisions regarding “special use” permits all-toooften involving review of programming content, 14 or
where permits were either denied or fees imposed
based on an arbitrary determination of “commercial
filming” because employees were paid. 15 In another
incident an NPS “permit officer” told a journalist “she
needed to get a permit or film elsewhere,” stating that
unless the station “was covering a ‘breaking news
event’–such as the death of a climber–it would be required to obtain a special use permit and pay the
fee.” 16
Today, with the increasingly blurred lines between commercial and non-commercial filming, and
still photography and videography, operators of national parks have proven unable to decode the contours of § 100905. Per § 100905, the National Park
Service is not allowed to require a permit for still photography unless it “takes place at other locations
where members of the public are generally not allowed, or where additional administrative costs are
likely,” 54 U.S.C. § 100905(c)(1); or if the photography
“uses models or props that are not a part of the site’s
natural or cultural resources or administrative facilities.” 54 U.S.C. § 100905(c)(1); 43 C.F.R. § 5.2. The
statute’s implementing regulations further clarify
that “portrait subjects such as wedding parties and
high school graduates are not considered models.” 43
C.F.R. § 5.12. Yet superintendents and park permit
officials have independently enacted local permit
rules that include prior restraints and content-based
restrictions on what and who can be photographed.
This has included bans on professional photography
14 Id. at 20, 23-24.
15 Id. at 20.
16 Id.
17
(but not amateur photography) at certain times of the
year, and in certain locations. Despite the plain language of §100905 and 43 C.F.R. part 5, Yellowstone
National Park’s rules state that—regardless of the
amount of equipment or level of impact— “[c]ompensated photographers hired to photograph weddings or
other ceremonies/events, or portraits (weddings, family, senior, pets, engagement, etc.) in the park are required to obtain a Commercial Use Authorization permit.” See Portrait Services CUA- Yellowstone National
Park,
https://www.nps.gov/yell/getinvolved/singlesession-portrait-services-cua.htm (last visited January 27, 2023). Yellowstone limits the location and time
of year when photos can be taken, and requires portrait photographers to obtain insurance and report
their revenue to the superintendent. Id. An even more
onerous planned permit scheme in Grand Teton National Park would have banned professional photographers entirely from certain weddings, and imposed
fees and prohibitions on where photographers with
nothing more than a handheld camera could take pictures. The park relented after NPPA and other amici
outlined the First Amendment and statutory violations. See Arnold, Billy, Grand Teton park walks back
permits for wedding photographers, JACKSON HOLE
NEWS & GUIDE, March 30, 2022, https://www.jhnewsandguide.com/news/environmental/grand-teton-park-walks-back-permits-for-wedding-photographers/article_39c9f60f-52b8-5b35-a5cae46a2ee6c8e8.html.
These various permit schemes act as financial
barriers targeted at filmmakers and photographers
based solely on the content of the expressive work, or
the identity of the speaker. Such content-based burdens on speakers is presumptively unconstitutional.
18
Sorrell v. IMS Health Inc. 564 U.S. at 565–66; Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 340
(2010). It is widely understood that a “statute is inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of
their speech.” Simon & Schuster, Inc. v. Members of
New York State Crime Victims Bd., 502 U.S. 105, 115
(1991); Forsyth County, Ga. v. Nationalist Movement,
505 U.S. 123, 130 (1992). Further, when filming is
low-impact or no-impact, a requirement to obtain a
permit prior to engaging in expressive First Amendment conduct bears “a heavy presumption against its
constitutional validity.” S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (content-based permit
denial for theater was unconstitutional); Watchtower
Bible & Tract Soc'y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 167 (2002) (a permit requirement to
engage in expressive conduct “is offensive—not only to
the values protected by the First Amendment, but to
the very notion of a free society.”).
Accordingly, it might be feasible for the NPS to
require permits when photographers and filmmakers
require access to areas that the public are generally
not allowed, when additional administrative costs are
likely, or when it might cause an unreasonable disruption to the public use and enjoyment of the site. See,
e.g., 16 U.S.C. § 460l-6d (c)-(d). But it can only do so if
the permitting requirements: 1) are not overbroad; 2)
are not based on the content of the message; 3) are
narrowly tailored to serve a significant governmental
interest, and 4) leave open ample alternatives for communication. Forsyth County, 505 U.S. at 130. The current permitting scheme fails this test.
The kind of speaker-based and content-based
discrimination that Gordon Price was subjected to is
19
clearly proscribed by the First Amendment, and its
disparate enforcement, based on the identity of the
speaker, has become “simply a means to control content,” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 170
(2015); Regan v. Time, Inc., 468 U.S. 641, 648–49
(1984) (regulations that discriminate based on the
content of the message are not tolerated under the
First Amendment). The government has not overcome
the presumptive unconstitutionality of the NPS permitting scheme.
III. National Parks are public spaces where the
First Amendment protects filming and photography, and regulations restricting expressive activities and creating a government tax
scheme are not reasonable.
The majority below erred when suggesting that
only topics that are “matters of public controversy” are
worthy of protection of the right to record on public
property. Price, 45 F.4th at 1071. This Court has already rejected that idea, holding that “[m]ost of what
we say to one another lacks religious, political, scientific, educational, journalistic, historical, or artistic
value (let alone serious value), but it is still sheltered
from Government regulation.” Stevens, 559 U.S. at
479. Filming in national parks is a means of gathering
information about the way the government runs the
parks, and therefore, about our government itself.
That the filming often captures beauty, instead of dramatic scenes such as police activity has no effect on its
status as protected by the First Amendment.
The national parks have a history steeped in
visual tradition. Hardly a person visits a national
20
park without taking home a visual record. Indeed,
photography led to the establishment of some of the
grandest national parks. 17 As roads and other infrastructure made parks and forest land more accessible
to visitors, a new tradition- the vacation “slide show”
evolved, where Americans shared their visual records
with members of their community. 18 As a visual record of national parks has tied Americans to these
places, these lands “have immemorially been held in
trust for the use of the public” through and by filming
and photography as a means by which our nation
“communicat[es] thoughts between citizens, and discuss[es] public questions” especially as it relates to the
parks themselves. Perry Educ. Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
“Artists have created art in national parks
since the late 19th century,” the NPS brags as it promotes over 50 Artists-in-Residence Programs “for visual artists, writers, musicians, and other creative media.” 19 Throughout its communications, the National
Park Service and its partners celebrate the intimate
relationship between visual arts and park lands.
“Photography is an important part of national park
history … Today, professional and amateur photo17 Mansky, Jackie, How Photography Shaped America’s National
Parks, SMITHSONIAN MAGAZINE, June 22, 2016, https://www.smithsonianmag.com/travel/how-photography-shaped-americasnational-parks-180959262/ (“Places like Yosemite, Yellowstone,
the Grand Canyon really were established through photography
and art.”).
18 Poole, Gary Andrew, A Couple of Beers and 140 Views of Yellowstone, THE NEW YORK TIMES, Nov. 21, 2008, https://www.nytimes.com/2008/11/21/travel/escapes/21Rituals.html.
19
Be an Artist-in-Residence, NATIONAL PARKS SERVICE,
https://www.nps.gov/subjects/arts/air.htm (last visited October
7, 2021).
21
graphers alike travel from around the world to capture scenic and historic vistas.” 20 The connection to
photography and the aesthetic impact of the National
Parks System is so great that the District of Columbia
District Court has expressly recognized the “concrete
and particularized interests” of photographers in the
parks as sufficient to convey standing to challenge
hunting regulations. Mayo v. Jarvis, 177 F. Supp. 3d
91, 129 (D.D.C. 2016). 21 Whether in reference to the
historic origins or the current use and enjoyment of
the park, photography and filming are and have been
integral to the National Park Service and a core part
of its overall value to the American people.
Federal lands generally are also presumptively
and traditionally open to photography so that citizens
can observe and gather information on government
activity. See Leigh, 677 F.3d at 898. A “qualified right
of access for the press and public to observe government activities” exists on federal lands, whether in
the Bureau of Land Management, the National Park
System or the National Forest Service. Id. These critical First Amendment protections extend well beyond
the press “to prohibit government from limiting the
stock of information from which members of the public
may draw”. See First Nat’l Bank of Bos. v. Bellotti, 435
U.S. 765, 783 (1978). Particularly in the era of social
media, citizens regularly “report” and share information about their national parks for audiences of
varying sizes. Journalists also gather and report on
national parks. Indeed, as the Complaint alleges,
Picturing
the
Parks,
NATIONAL PARK SERVICE,
https://www.nps.gov/subjects/photography/index.htm.
21 amended on other grounds, 203 F. Supp. 3d 31 (D.D.C. 2016);
amended decision aff'd sub nom. Mayo v. Reynolds, 875 F.3d 11
(D.C. Cir. 2017).
20
22
members of the media and the general public have
created videos from the exact location where Mr. Price
filmed his project, and the NPS represented to him
that those individuals were engaged in First Amendment activities. See Complaint, Price v. Barr, No. 193672, ECF No. 1 (Dec. 9, 2019) at para. 41-44. The
government recognized the First Amendment nature
of filming and opened the park up for those “approved”
individuals to engage in expressive activity without
restriction. But they charged Mr. Price with a crime
for doing the same. The government cannot pick and
choose who can take advantage of a public place, and
who can create speech, in this manner. This kind of
discrimination on who can collect information, based
on the speaker and the content, cannot stand. See Sorrell, 564 U.S. at 570.
The D.C. Circuit’s determination that a government tax on the creation of a film based on the content
of that film is also not a reasonable restriction on expression. There are two parts to the National Park
Service film permit scheme. The first is a cost-recovery fee related to the “costs incurred” as a result of the
project, including administrative costs. U.S.C. §
100905(b). The second is a “fair return” fee — akin to
a location fee that private landowners charge for
photo shoots on private property. The “fair return” fee
is Congress’s attempt to get a cut of the presumed
profit from a commercial filmmaking enterprise. 54
U.S.C. § 100905(a)(1). It is the “fair return” fee that
the district court held was an unconstitutional tax on
the exercise of a First Amendment right. Amici agree.
As Judge Tatel noted below in dissent, not only
does the holding below improperly limit First Amendment protection to protect “the stumping politician
but not the silent photographer, to shield the shouting
23
protester but not the note-taking reporter”, but it also
endorses a government tax on the silent photographer
and the note-taking reporter. Price v. Garland, 45
F.4th at 1081 (Tatel, J., dissenting).
CONCLUSION
This Court should grant review of the D.C. Circuit decision, because this case is inconsistent with
the long history of protecting speech by protecting the
activities necessary to the creation of that form of expression.
Mickey H. Osterreicher
Counsel of Record
Alicia Wagner Calzada
National Press
Photographers Assoc.
70 Niagara Street
Buffalo, NY 14202
(716) 983-7800
lawyer@nppa.org
Gregg P. Leslie
Zachary Cormier
First Amend. Clinic
Arizona State Univ. Sandra
Day O’Connor College of Law
111 E. Taylor St.
Phoenix, AZ 85004
February 16, 2023
App. 1
APPENDIX TABLE OF CONTENTS
Appendix A: List of Amici ................................ App. 2
App. 2
APPENDIX A
List of Amici
National Press Photographers Association
(“NPPA”) is a 501(c)(6) not-for-profit organization dedicated to the advancement of visual journalism in its
creation, editing, and distribution. NPPA’s members
include video and still photographers, editors, students, and representatives of businesses that serve
the visual journalism community. Since its founding
in 1946, the NPPA has been the Voice of Visual Journalists, vigorously promoting the constitutional and
intellectual property rights of journalists as well as
freedom of the press in all its forms, especially as it
relates to visual journalism.
American Photographic Artists (“APA”) is a
leading not-for-profit organization run by, and for,
professional photographers since 1981. Recognized for
its broad industry reach, APA works to champion the
rights of photographers and image-makers worldwide.
American Society for Collective Rights Licensing (“ASCRL”) is a 501(c)(6) not-for-profit corporation founded in the United States to administer collective rights revenue for photographers and illustrators. ASCRL is the leading collective rights organization in the United States for this constituency, representing over 16,000 members. ASCRL actively engages in market preservation policy and legislative initiatives, including those for collective administration,
where collective administration serves to supplement
the primary rights marketplace of its constituents.
App. 3
American Society of Media Photographers,
Inc. (“ASMP”) 501(c)(6) non-profit trade association
representing thousands of members who create and
own substantial numbers of copyrighted photographs.
These members all envision, design, produce, sell, and
license their photography in the commercial market
to entities as varied as multinational corporations to
local mom and pop stores, and every group in between.
In its seventy-five-year-plus history, ASMP has been
committed to protecting the rights of photographers
and promoting the craft of photography.
Digital
Media
Licensing
Association
(“DMLA”) represents the interests of digital licensing
entities that offer, for license, millions of images, illustrations, film clips, and other content on behalf of
thousands of individuals to editorial and commercial
users.
First Amendment Lawyers Association
(“FALA”) is an Illinois nonprofit corporation with
some 180 members throughout the United States,
Canada, and Europe. Its membership consists of attorneys whose practice emphasizes the defense of
First Amendment rights and related civil liberties.
For more than half a century, FALA members have
litigated cases concerning a wide spectrum of such
rights, including free expression, free association, and
related privacy issues.
Getty Images (US), Inc. (“Getty Images”) is a
leading source for visual content around the world, including a comprehensive editorial offering. Through
our brands Getty Images, iStock and Unsplash, we
provide a platform that enables customers to lawfully
license editorial and creative work from content creators who are able to monetize their work.
App. 4
The National Writers Union (“NWU”) The National Writers Union (“NWU”) is a 501(c)(5) nonprofit, independent national labor union that advocates for freelance and contract writers and media
workers. The NWU and our Digital Media Division (Freelance Solidarity Project) works to advance
the economic conditions of writers and media workers in all genres, media, and formats.
The News/Media Alliance represents news and
media publishers, including nearly 2,000 diverse news
and magazine publishers in the United States—from
the largest news publishers and international outlets
to hyperlocal news sources, from digital-only and digital-first to print news. Alliance members account for
nearly 90% of the daily newspaper’s circulation in the
United States. Since 2022, the Alliance is also the industry association for magazine media. It represents
the interests of close to 100 magazine media companies with more than 500 individual magazine brands,
on topics that include news, culture, sports, lifestyle
and virtually every other interest, avocation or pastime enjoyed by Americans. The Alliance diligently
advocates for news organizations and magazine publishers on issues that affect them today.
The North American Nature Photography
Association (“NANPA”) is a 501(c)(6) non-profit organization founded in 1994. NANPA promotes responsible nature photography (both stills and video) as an
artistic medium for the documentation, celebration,
and protection of the natural world. NANPA is a critical advocate for the rights of nature photographers on
a wide range of issues, from intellectual property to
public land access.
Radio Television Digital News Association
(“RTDNA”) is the world's largest professional
App. 5
organization devoted exclusively to broadcast and digital journalism. Founded as a grassroots organization
in 1946, RTDNA’s mission is to promote and protect
responsible journalism. RTDNA defends the First
Amendment rights of electronic journalists throughout the country, honors outstanding work in the profession through the Edward R. Murrow Awards and
provides members with training to encourage ethical
standards, newsroom leadership and industry innovation.
The Society of Environmental Journalists is
the only North American membership association of
professional journalists dedicated to more and better
coverage of environment-related issues.
Society of Professional Journalists (“SPJ”) is
dedicated to improving and protecting journalism. It
is the nation’s largest and most broad-based journalism organization, dedicated to encouraging the free
practice of journalism and stimulating high standards
of ethical behavior. Founded in 1909 as Sigma Delta
Chi, SPJ promotes the free flow of information vital to
a well-informed citizenry, works to inspire and educate the next generation of journalists and protects
First Amendment guarantees of freedom of speech
and press.
The White House News Photographers Association, Inc. (“WHNPA”), is a 501(c)(6) non-profit organization dedicated to the public’s right to freedom
in searching for the truth and the right to be accurately and completely informed about the world in
which we live. WHNPA believes that there is a direct
linkage between the survival of a democratic society
and an accurate and free press.
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.