RIP Commercial Filming Permits

I shed no tears for the death of “commercial filming” permits. Last week, a federal district court judge declared the law requiring permits for commercial filming on public lands an unconstitutional infringement on speech. The court entered a permanent injunction enjoining the permit program and its enforcement.

The court’s postscript noted that “a more targeted permitting regime for commercial filming, which is more closely connected to the threat posed by large groups and heavy filming equipment, may pass constitutional muster in the future.”

Special-use permit administrators everywhere should be breathing a sigh of relief.

17 thoughts on “RIP Commercial Filming Permits”

  1. Andy, what am I missing.. we generally don’t think that permitting (say demonstrations) in and of itself is a violation of free speech.

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  2. It’s helpful to consider the role of the agency permit administrator to understand whether a permit is being issued or denied based on the CONTENT of the speech. As the Court explains (page 22):

    To determine whether Crawford Road ran afoul of § 100905’s permitting regime, NPS officials needed to review the film and determine ex post whether the content Mr. Price included therein was geared towards a “market audience” or evinced some “intent of generating income.” 43 C.F.R. § 5.12. If, however, Mr. Price’s film was “non-commercial” or happened to feature only news worthy “information . . . about current events or . . . of current interest to the public,” id., the permitting requirement would not apply.

    In other words, if a government bureaucrat has to LOOK at the film to decide whether a permit is required, then the speech restriction is content-based and subject to “strict scrutiny,” a high bar the government attorneys all but conceded this law does not meet.

    The Constitution does not preclude requiring permits for any and all entry onto or use of public land (in fact, the FS requires a special-use permit for almost every activity that isn’t recreational, and many that are). But, a permit scheme imposed on some, but not other speech, based on the speech’s content is unconstitutional.

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  3. I am a fine art photographer by profession, and have been at it for decades. In Ansel Adams time, there was never any question about photography on public lands or virtually anywhere else. Over the decades, there was a narrowing of thought. That was why Public Law 106-206 was signed by Clinton. It allows still photography without a permit on any public land that has normal public access, and without the use of props or models. This public law has greatly helped photographers maintain their work in the American wilderness.
    Sadly, documentary photographers have not had the same set of rules to work under. So if you want to do a documentary on bison in Yellowstone, not only will you need a permit if their is a crew greater then two, but it launches the project into a bureaucracy few can afford or manage.
    Towards feature film production, a whole different issue. I live on former movie ranch property, and down the road from me (1 mile) is an active western set. There are productions on it all of the time—including “News of the World”, a current release with Tom Hanks.
    Those are large crews. And while they leave the movie set spotless (they really do), the number of people and vehicles has a large impact on terrain. It would seem that the judge has realized that certain situations will require permits for the sake of the wilderness, safety and crowd control.
    I would view this action by the judge as a refinement of thought on what “commercial” means to public lands, not a flat out elimination of all permit processes.

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    • The land management agencies could solve the large impact filming problem by using their existing permitting authorities, unrelated to this unconstitutional law. Doing so, however, likely means forfeiting the filming fee dollars, as it is the unconstitutional “commercial” (i.e., speech-related) provisions of the law that trigger the revenue stream.

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      • Well, now I’m curious again. I think I’m confused about “needing a permit” versus “fees and how they’re calculated.” Say for example three people tramping about on a guided hike (commercial) versus three people involved in filming a documentary (intended to be commercial? does that matter?). I think the commercial aspects trigger a permit (or not?) but how does the FS calculate what to charge for the permit?

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        • Everything you ever wanted to know (and more) about outfitter & guide fee authorities and cost calculation is in this GAO report. FLREA is the basic recreation fee authority. The 1897 Organic Act is the basic permitting authority.

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  4. Extra credit questions for readers:

    Why does the Wilderness Act’s regulation of “commercial activities” not offend the First Amendment’s restriction on government’s ability to regulate speech?

    Why can a librarian silence your speech (“hush, please”) in a government-owned library?

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    • Without reading the whole case, it seems like the result is that the government can not use “commercial” content of speech as a criterion for charging fees or other kinds of regulation. (If it didn’t require looking at the product, no problem?) Or more broadly, the whole idea of charging fees based on the potential profit from use of federal lands instead of on the need to protect the resources on those lands from damage may be at risk? Assuming there are statutes that authorize that, might they be unconstitutional, too? Then I wonder about FOIA, since it distinguishes fee waivers based on the purpose of the request.

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      • The First Amendment bars government only from “abridging,” i.e., restricting speech, not from promoting speech.

        In regard to FOIA, the default is that everyone must pay FOIA fees. In its wisdom, however, Congress decided to waive fees when doing so is in the “public interest.” Government documents that are meaningfully informative about government operations should be provided free of charge if doing so will increase public understanding of government operations. It is primarily the nature of the government documents (i.e., the government’s speech) that determines whether a fee waiver is granted.

        FOIA fee waivers are an example of government promoting speech, which governments at all levels do routinely. In the case of FOIA, most of the criteria for granting a fee waiver concern the nature of the documents themselves, not the use to which the requester puts them. The requester is judged only by its “expertise in the subject area as well as your ability and intention to effectively convey information to the public.” If the requester, and most importantly the documents themselves, meet these public interest criteria then even commercial use of the documents will not prevent a fee waiver.

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        • The actual language from FOIA is: “Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”

          That last part requires a determination of the commercial interest of the requester in using the government property for their “speech.” I’m not seeing much difference between that and charging for commercial filming of government property, since they both place a financial burden on “free speech.” (But I claim no expertise in constitutional law.)

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  5. It appears to me this injunction does not apply to National Forest System lands, or Forest Service regulations and policies. Perhaps when you’ve made a name for yourself by bashing an agency it might make you prone to overlook important details, while also ignorantly passing yourself off as an expert on the law. But what would us nefarious bureaucrats know, we’re to busy trying to take people’s rights away, right Mr. Stahl ?

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    • The Forest Service is welcome to invite litigation by pretending the court’s reasoning does not apply to its identical commercial filming permit process authorized under the same unconstitutional law. However, I think the FS is smarter than that.

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  6. andystahl,

    Do you also think the same precedent applies to the wilderness areas which allow non-commercial filming but outlaw commercial filming ?

    Do you know of any cases the forest service has pursued since you last posted on this thread ? Certainly there are many Youtubers posting videos from their activities in the National Forests.

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    • Do you also think the same precedent applies to the wilderness areas which allow non-commercial filming but outlaw commercial filming ?

      Since the Wilderness Act sweeps broadly by banning all commercial enterprises, I don’t think this law offends the First Amendment.

      That being said, Forest Service implementation of the Act’s commercial enterprise ban and its limited exception has been problematic, e.g., High Sierra Hikers v. Forest Service, 390 F.3d 630 (9th Cir. 2004) (“The Forest Service may authorize commercial services only ‘to the extent necessary.’ Thus, the Forest Service must show that the number of permits granted was no more than was necessary to achieve the goals of the Act”).

      That’s been true when it comes to commercial filming, too. In its efforts to exploit the Act’s limited outfitter-and-guide exception to the ban on commercial enterprises, the Forest Service may well find itself making permit decisions on the basis of speech content — a big “no no.”

      If the FS would just follow the Wilderness Act’s commercial enterprise ban, and avoid trying to distort the Act’s exception beyond all recognition, there would be no problem.

      Do you know of any cases the forest service has pursued since you last posted on this thread? Certainly there are many Youtubers posting videos from their activities in the National Forests.

      I don’t.

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