Price v. Garland
Are Americans free to film in our national parks? According to the majority in Price v. Garland, an opinion out of the United States Court of Appeals for the D.C. Circuit, the answer is no for commercial filming, regardless of the First Amendment. Under that ruling, anyone can be fined and even jailed for taking a selfie video in a national park, if they later upload it online and earn ad revenue for views. The court came to this wrong conclusion by making a bewildering distinction between actually sharing the video itself and the entire process of filming and producing that goes into creating it. Under the court’s misguided ruling and reasoning, only the final video receives full First Amendment protection.
The D.C. Circuit majority’s analysis in Price overlooks or misapplies existing Supreme Court precedent, the holdings of every other federal circuit in America to consider this question, and common sense. If allowed to stand, it would provide a blueprint for government regulators to restrict several kinds of expression on federal lands, including filming, photography, writing, painting, and even newsgathering by journalists. And if other circuits adopt the Price court’s test, those restrictions could spread to other public fora, including university campuses.
On February 21, 2023, FIRE filed an amicus brief with the Supreme Court asking it to grant review of the D.C. Circuit’s decision and confirm that the First Amendment applies equally to all steps in the expressive process, including – and especially – in our national parks.
On May 1, 2023, the U.S. Supreme Court denied the petition for certiorari.