Judge Rules National Park Filming Rule Unconstitutional

Filmmakers, YouTubers, and other content creators received a big win recently when a D.C. Federal Judge ruled that the permit and fee requirements applying to commercial filming are unconstitutional. Still photography rules remain unchanged, although they weren't as restrictive as the filming rules.

Previously, under 54 USC 100905, 43 CFR Part 5, and 36 CFR Part 5, the National Park Service required a permit and a fee to film commercially on its land. In December 2019, independent director Gordon Price sued the U.S. Attorney General (then William Barr) and officials from the Department of the Interior and National Park Service. Price challenged that the rule was unconstitutional after two National Park Service officers issued Price a citation in late 2018 for filming without a permit in public areas of the Yorktown Battlefield in Colonial National Historical Park in Virginia.

Previously, the statute required a permit for commercial filmmaking but did not require one for non-commercial filmmaking. Price argued that this was a violation of his first amendment rights.

On January 21, 2021, U.S. District Judge Colleen Kollar-Kotelly agreed, stating:

"Mr. Price's filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment. The creation of a film must also fall within the ambit of the First Amendment's protection of freedom of expression. To find otherwise, would artificially disconnect an integral piece of the expressive process of filmmaking."

Kollar-Kotelly also noted in her ruling that:

"In issuing this injunction, the Court observes that a more targeted permitting regime for commercial filming, which is more closely connected to the threat posed by large groups and heavy filming equipment, may pass constitutional muster in the future."

The National Park Service has updated their website about this matter, stating:

"On January 22, 2021, the U.S. District Court for the District of Columbia issued a decision in Price v. Barr determining the permit and fee requirements applying to commercial filming under 54 USC 100905, 43 CFR Part 5, and 36 CFR Part 5 are unconstitutional. The National Park Service is currently determining how this decision will be implemented.
Following the recent court decision, the National Park Service will not be implementing or enforcing the commercial filming portions of 43 CFR Part 5 until further notice, including accepting applications, issuing permits, enforcing the terms and conditions of permits, issuing citations related to permits, or collecting cost recovery and location fees for commercial filming activities."

Obviously, if you're planning a big shoot with lots of equipment and actors or models, you'll want to contact the National Park Service. This means that you no longer have to have a permit if you want to shoot stock video footage, b-roll, or create YouTube videos (that you monetize) in the National Parks.

As for still photography, the National Park Service website also states:

"Price v. Barr had no impact on how the National Park Service regulates still photography, so there are no changes in how the National Park Service regulates that activity. Still photographers require a permit only when:
1. the activity takes place at location(s) where or when members of the public are generally not allowed; or
2. the activity uses model(s), sets(s), or prop(s) that are not a part of the location's natural or cultural resources or administrative facilities; or
3. a park would incur additional administrative costs to monitor the activity."

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12 Comments

jim hughes's picture

Sounds like people wanting to actually enjoy the parks will now be increasingly annoyed by "content creators" running around with new video toys. Hope they're live streaming so I can photo bomb the show.

Steve Powell's picture

This actually makes no sense. If I want to video wildlife, or a waterfall, how in the hell does that affect you?

Black Z Eddie .'s picture

Hopefully, this will open the door for stills photography. But, maybe it already has..just speculating. A couple of years ago, Valley of Fire in Las Vegas had a similar statement "the activity uses model(s), sets(s), or prop(s)" in their film/photography fee section. Now, there's no mention of it, especially "model".

http://parks.nv.gov/fees/photography-permits

Timothy Roper's picture

Were photographers/filmmakers like Jimmy Chin getting a permit every time they went up something like El Capitan to take photos and videos with a climber (like Alex Hannold)? Doesn't seem like that would have been practical or possible, leading to what I'm guessing was extremely selective enforcement of the old rules.

El Dooderino's picture

"Doesn't seem like that would have been practical or possible,"

Why not? I'm sure a lot of planning goes into filming climbers like Alex Honnold, and, as Jimmy Chin is a very experienced film maker and photographer (as well as climber), he would know to obtain the necessary permits as part of the pre-shoot prep.

I doubt they just show up on a whim and decide to make a film.

Steve Powell's picture

Yes, he got a permit because it was a commercial shoot.

Austin Rotter's picture

I'm not sure how I feel about this. How is your first amendment right being supressed here? Non commercial video was still allowed without permit, so isn't it only your ability to make money with your first amendment right really at stake? What's the harm in getting a permit in a public space? Literally taken from the ACLU website:

The First Amendment protects your right to assemble and express your views through protest. However, police and other government officials are allowed to place certain narrow restrictions on the exercise of speech rights.

And this is non monetized protest. Why couldn't the government be able to place limitations on something that could potentially disrupt the environment set aside for everyone's benefit?

These aren't rhetorical questions, I'm genuinely interested and asking. For some reason this legitimately piqued my interest.

jim hughes's picture

IMHO the idea that shooting stills or video constitutes "speech" is ludicrous. "Freedom of speech" means you have the right to express your opinions - not the right to get in people's way while shooting pictures to support those opinions, which the people whose view you just blocked may never even see. Maybe you spend 100 hours in a park shooting clips for a documentary that you don't even finish. Where was the "speech" in that activity?

Sounds like they got a sympathetic judge and delivered a great presentation on the "expressive process of filmmaking". We can always hope this decision is overturned on appeal, or that the NPS rewrites the restrictions so they hold up.

Steve White's picture

Fortunately our rights aren't affected by a poor thought process preventing you from recognizing that freedom of speech goes beyond actual words. I'd try to explain that aspect, but your post makes me fairly certain that I'd be better off teaching pigs to sing. Rather than a sympathetic judge, the plaintiffs got a judge who has more than an uninformed and simplistic understanding of the 1st amendment, and they reached the only rational conclusion possible.

As for getting in people's way, I don't know how much of that is a defective thought process and how much is having an opinion that's completely uninformed by what the law said or how it was applied, but I'm slightly more optimistic that you might be able to understand at least the basics. It's possible to get in the way while filming and not making money from it, and it's possible to earn money from filming that was done without getting in anyone's way. At least it's possible for people who aren't stupid.

Steve White's picture

"How is your first amendment right being supressed here" Seriously? They were requiring a permit to exercise your first amendment rights. How hard is it to understand that? The 1st amendment is probably the most clearly written one: "Congress shall make no law ..." What part of that gives you the idea that you can be required to get a permit to exercise your rights?

As for restricting protests, I don't see how any competent judge could uphold laws that keep you from assembling peaceably in any place that you could legally be if it wasn't to protest if the judge actually believed we had inalienable rights. Of course the problem there is that we've had too many judges who look for ways to restrict our rights instead of preserve them.

barry cash's picture

I’m guessing the mention of Utubers is the magic password. Ironically to my knowledge most public spaces have a limit on occupancy but not parks? We fund the national parks and pay the entrance fee yet few have restrictions on carrying limits and those who do still let bus loads of visitors in regardless of the years of combined misuse and damage to the parks ecosystem. The management (government) has not taken a serious stand. Some years are worse than others but content makers have a free pas...ridiculous.

Robert Edwardes's picture

This seems logical since it just brings video in line with photography permit rules, which were pointless since every camera can do video it just meant some one had to report you after the fact, like what happened with 2 you-tubers.