Price v. Garland
| Decision Date | 23 August 2022 |
| Docket Number | 21-5073 |
| Parties | Gordon M. PRICE, Appellee v. Merrick B. GARLAND, in his official capacity as Attorney General of the United States of America, et al., Appellants |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Brian M. Boynton, Acting Assistant Attorney General, Michael S. Raab and Joshua M. Salzman, Attorneys.
Robert Corn-Revere argued the cause for appellee. With him on the brief was Patrick J. Curran Jr.
Glenn E. Roper was on the brief for amici curiae Pacific Legal Foundation and Anthony Barilla in support of appellee.
Mickey H. Osterreicher and Alicia Wagner Calzada were on the brief for amici curiae National Press Photographers Association, et al. in support of appellee.
Before: Henderson and Tatel* , Circuit Judges, and Ginsburg, Senior Circuit Judge.
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 forum. Because the permit-and-fee requirements are reasonable, we reverse the order of the district court.
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," "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).
The following facts are taken from the district court's memorandum opinion. Plaintiff-Appellee Gordon Price is a part-time independent filmmaker. In 2018 he released Crawford Road , a film about a stretch of road in York County, Virginia that was the location of unsolved murders and long rumored to be haunted. Price filmed scenes on the Yorktown Battlefield in the Colonial National Historical Park, land administered by the NPS, without first obtaining a permit from the NPS and paying the fee. For those scenes, Price used a camera, a tripod, and a microphone. A crew of no more than four people were present.
Crawford Road premiered in October 2018 to an audience of around 250 people in Newport News, Virginia. A couple of months later, NPS officers issued Price a "violation notice" for failing to obtain a commercial filming permit.
In the wake of the criminal charge, Price canceled further screenings of Crawford Road and removed from it all footage shot on NPS land. Discussions about a distribution deal for the film came to an abrupt halt. Price had also been doing preliminary work on another film that would involve filming on land administered by the NPS, but he refrained from shooting this footage out of fear of prosecution.
Appearing before the United States District Court for the Eastern District of Virginia, Price moved to dismiss the charge, on the ground that § 100905 and its implementing regulations are facially unconstitutional. Instead of litigating this question, the Government dismissed the charge. Deprived of jurisdiction to consider the merits of Price's constitutional challenge, which were raised only as a defense to a criminal prosecution, the district judge dismissed the case. The Government did not, however, renounce its belief in the constitutionality of the statute and the regulations, nor did it forswear prosecution of Price for any future violation of the permit-and fee-requirements.
In December 2019 Price pressed his constitutional argument in a civil complaint filed in the United States District Court for the District of Columbia. Price sued several individuals in their official capacities: the Attorney General of the United States of America, the Secretary of the Department of the Interior, and the Deputy Director Exercising the Authority of Director of the NPS. Alleging that § 100905 and the regulations implementing it are facially unconstitutional, Price sought declaratory and injunctive relief.
The parties cross-moved for judgment on the pleadings. The district court denied the defendants’ motion and granted Price's.
In the memorandum opinion accompanying her order, the district judge treated the permit-and 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 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, 123 S.Ct. 2191, 156 L.Ed.2d 148 (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, 123 S.Ct. 2191 ; 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, 123 S.Ct. 2191 (cleaned up).
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