Gordon Price v. Merrick Garland ( 2022 )

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
v.
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.
2
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 permit-and-
fee requirements are facially unconstitutional 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
*
Judge Tatel assumed senior status after this case was argued
and before the date of this opinion.
3
forum. Because the permit-and-fee requirements are
reasonable, we reverse the order of the district court.
I. Background
A. 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 Register.” 43 C.F.R.
§§ 5.2(a), 5.8(a)(1),(3). The 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,”
4
“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).
5
B. 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,
6
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 fee-requirements 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
7
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
8
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.gov/aboutus/news/commercial-film-and-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)).
A. 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
9
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 content-neutral. 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 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
10
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 permit-and-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.
• 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.
11
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 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
12
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:
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).
13
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 proto-forum-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).
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 of
14
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 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
15
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 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.
16
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 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.*
*
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).
17
Although the Ness court proceeded to apply traditional
forum analysis in concluding that the ordinance was
unconstitutional, id., its analysis does 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. *
B. 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 not for
noncommunicative first amendment activity such as
*
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.
18
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
(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
19
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 443-44 (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).
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.
20
1. 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
government-controlled 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 newsracks 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
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.
21
§ 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.
2. 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 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
22
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 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
23
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 non-commercial 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. 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 as-applied challenge to
the permit requirement. We hold only that, on the record
before us, we cannot conclude the permit requirement is
facially unreasonable. *
*
Because we dispose of the case on this ground, we have no
occasion to comment on (1) the propriety of the district court’s
24
3. A brief rejoinder regarding the “news-gathering”
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” (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-and-fee 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
issuing a nationwide injunction or (2) whether the district court’s
overbreadth 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).
25
of the Republic, an exception for “news-gathering” 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
news-media entities for dissemination to the public,” 43 C.F.R.
§ 5.12, the distinction between filming a documentary and
news-gathering is no different than the distinction between
filming a drama and news-gathering. And to the extent the
documentary is “news,” it surely is included in the exception
for “news-gathering.”
III. Conclusion
To summarize, although filmmaking is protected by the
First Amendment, the specific speech-protective rules of a
public forum apply only to communicative activity.
Consequently, regulations governing filmmaking on
government-controlled property need only be “reasonable,”
which the permit-and-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 “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 Schöenberg, 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 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.
I.
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
2
audience of 250 people and later acquired additional views on
social media platforms. Id. ¶¶ 40–42. Several months later,
“two NPS officers came to Price’s [workplace] and issued him
a [criminal 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 nonpublic.”
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”).
3
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)).
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
4
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 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.
5
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 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
6
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 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,
7
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 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
8
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 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 serve a significant
9
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 as a
public forum, it remains so regardless of which particular type
of First Amendment expression occurs within the forum. See
John K. MacIver Institute for Public Policy, Inc. v. Evers, 994
10
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. 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
11
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’”).
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
12
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 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.