Table of Contents
First Amendment News 284: Federal law struck down — National Park Service can't compel permits and fees for commercial filming
The case is Price v. Barr (decided Jan. 22), a case about a man who was criminally cited for filming in a federal park.
Gordon Price is a music store owner and part-time independent filmmaker; he lives and works in Yorktown, VA. Last year, Price and a colleague released an independent feature film about a York County stretch of road that has long been the subject of rumors of hauntings and the location of unsolved murders.
The film is entitled "Crawford Road." It premiered at the Boathouse Live Restaurant in Newport News, VA. About 250 people attended the premiere, which received press coverage. Later, it was presented at other venues in Hampton and Yorktown, VA. The film also received some local TV news attention.
Enter the police (from the motion to dismiss)
“In December 2018, two officers of the U.S. Park Service came to Price’s music store and issued a citation for failure to obtain a commercial filming permit pursuant to 36 C.F.R. § 5.5(a). Price asked the officers why his film was treated differently from numerous videos of paranormal activity from the same locations that appear on YouTube or the news interview he gave that appeared on WTKR, and was told the other activities were covered by the First Amendment, and the distinction turned on the commercial nature of his film.”
→ Counsel for the Defendant: Robert Corn-Revere
→ See FAN 224: "The Man Who Was Criminally Cited for Filming in a Federal Park" (Sept. 18, 2019)
District court ruling
In her opinion, federal district court Judge Colleen Kollar-Kotelly ruled that to the extent that permits, like the one in this case, are required under 54 U.S.C. § 100905(a)(1) and 36 C.F.R. § 5.5(a), the laws violate the First Amendment.
§ 100905 and its implementing regulation impose a content-based restriction on speech that does not pass constitutional muster. Just as the NPS regulations struck down in Boardley v. U.S. Dep’t of Interior (D.C. Cir. 2010), § 100905’s permitting regime for commercial filming “‘burden[s] substantially more speech than is necessary’ to achieve the government’s substantial interests” in protecting national park lands and resources from damage. Boardley, 615 F.3d at 519 (quoting Ward, 491 U.S. at 798–99). Section 100905 and its implementing regulations also fail to leave open any alternative channels for commercial filmmakers who would like to film in national parks without a permit. Boardley, 615 F.3d at 524 (quoting Turner, 893 F.2d at 1393). Accordingly, Mr. Price has established that the permit requirement for commercial filmingimposed by 54 U.S.C. § 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5 violates the First Amendment
As to the relief granted, Judge Kotelly added:
[T]he Court will issue a declaratory judgment stating that the requirements in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and36 C.F.R. § 5.5 that those engaged in “commercial filming” must obtain permits and pay fees are unconstitutional under the First Amendment. The Court will also enter a permanent injunction enjoining the permit and fee requirements for commercial filming in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and enjoining prosecution and the imposition of criminal liability thereunder. 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.
Amicus brief by National Press Photographers Association cited by court
Mickey Osterreicher of the NPPA organized an amicus effort on behalf of:
- American Photographic Artists
- American Society of Media Photographers, Inc.
- Digital Media Licensing Association
- First Look Media Works, Inc.
- Getty Images (US), Inc.
- National Press Photographers Association
- National Writers Union
- The North American Nature Photography Association
- Radio Television Digital News Association
- Society of Professional Journalists
- The White House News Photographers Association, Inc.
The effort did not go unnoticed by Judge Kollar-Kotelly:
As the amici in this case persuasively argue, the overinclusive sweep of § 100905’s permitting regime is particularly problematic given the ease of filming in the modern technological age. See Br. of Amici Curiae, ECF No. 29, at 5–12. Section 100905’s legislative history reveals a Congressional focus, over twenty years ago, on “major motion pictures” filmed in national parks, such as “Star Wars” and “Dances with Wolves.” S. Rep. 106-67, at 3 (1999). Yet, Congress did not limit the reach of § 100905 to these “major” productions alone, but instead drew the line only at “commercial” filming. 54 U.S.C. § 100905(a). Now, over two decades after the passage of § 100905, any individual may easily enter a national park and shoot a high-quality video at will using nothing more than a smart phone. See Br. of Amici Curiae, ECF No. 29, at 7. And with the expansion of mass-media outlets like YouTube, such filmmakers may expediently disseminate and monetize those videos on the internet. Yet, so long as these modern filmmakers attempt to commercially market their videos, § 100905 and its implementing regulations require a permit, without any regard for the effect that their filming might have on the preservation of national park land. See 43 C.F.R. § 5.12.
Court grants cert. in school speech case
The case is Mahanoy Area School District v. B.L. The issue in the case according to SCOTUSblog is: "Whether Tinker v. Des Moines Independent Community School District (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus."
Counsels of record
- Ms. Lisa Blatt of Williams & Connolly is the counsel of record on behalf of the Petitioner (read the cert. petition and reply brief). Among other cases, Ms. Blatt was the counsel of record for the cert. petition filed in a "true threats" case, Knox. v. Pennsylvania, which the Court declined to review.
- Witold J. Walczak of the ACLU of Pennsylvania, counsel of record for Respondents (read the brief in opposition on behalf of Respondents).
Third Circuit opinion
In the Third Circuit majority opinion, Judge Cheryl Ann Krause declared:
The heart of the School District's arguments is that it has a duty to "inculcate the habits and manners of civility" in its students. . . . To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution's limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the 'hazardous freedom' that is our national treasure and "the basis of our national strength.' Tinker."
In a separate opinion, Judge Thomas Ambro wrote:
"I concur in the judgment affirming the District Court's grant of summary judgment to B.L. on the narrow ground that our holdings in Layshock ex rel. Layshock v. Hermitage School District , 650 F.3d 205 (3d Cir. 2011) (en banc), and J.S. ex rel. Snyder v. Blue Mountain School District , 650 F.3d 915 (3d Cir. 2011) (en banc), mandate that outcome. I dissent from the majority's holding that, on the facts before us, the holding in Tinker v. Des Moines Independent Community School District . . . (1969) — that schools may regulate student speech only if it 'substantially disrupt[s] the work and discipline of the school,' id . at 513, 89 S.Ct. 733 — does not apply to 'off-campus' speech."
Trump DOJ urged Supreme Court to vacate 'harmful' 2nd Circuit Trump Twitter ruling
On Jan. 19, Acting Solicitor General Jeffrey B. Wall filed a supplement brief in the Supreme Court in the case of Trump v. Knight First Amendment Institute. The brief offered two main arguments: (1) "This case warrants further review but will soon be moot" and (2) "The judgment below should be vacated as moot under United States v. Munsingwear (1950)." Here is an excerpt from that brief:
Respondents sued President Donald J. Trump solely in his official capacity, asserting a constitutional right to interact directly with his personal social-media account through their own preferred accounts. The court of appeals held that such a right existed, reasoning that President Trump exercised the power of the United States government in blocking users based on viewpoint from his @realDonaldTrump account, thereby violating the First Amendment. As explained in the petition for a writ of certiorari, that decision was erroneous and worthy of this Court’s review. At noon on January 20, 2021, however, President-elect Joseph R. Biden, Jr., will succeed to President Trump’s role as defendant in this litigation. That transition will moot this case, as then-President Biden will have no ability to control the use of Donald J. Trump’s personal Twitter account. Beause this case warrants review but will become moot pending such review, the Court should follow its established practice of granting certiorari and vacating the judgment below. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
In response to the Trump Administration's supplemental brief, the Knight Institute's Jameel Jaffer commented:
“The Justice Department is right that the case is moot, but wrong about why. . . .The case is moot because President Trump’s repeated violation of Twitter’s terms of service led that company to shut down his account and to ban him permanently from its platform. Because it was President Trump’s own voluntary actions that made the case moot, the Supreme Court should leave the appeals court’s ruling in place.”
Katie Fallow, Senior Staff Attorney at the Knight Institute, and the lawyer who argued the case in the district court, also commented:
“The Supreme Court should reject the Trump administration’s last-ditch effort to have the Second Circuit’s decision vacated. But the truth is that the decision will continue to shape the way that public officials use social media even if it’s vacated. Many other courts have now adopted the Second Circuit’s analytical framework. And there is now widespread recognition that the principles we established in this case are important to protecting the vitality of public forums that are increasingly important to our democracy.”
- Response to Petitioners' supplemental brief of Knight First Amendment Institute at Columbia University, et al.
Dominion defamation suit against Giuliani
- Drew Harwell, "Giuliani wasn’t just a Trump partisan but a shrewd marketer of vitamins, gold, lawsuit says," The Washington Post (Jan. 26)
As he outlined how "pervasive voter fraud" had turned the United States into "Venezuela or China or the old Soviet Union," Donald Trump’s personal attorney, Rudolph W. Giuliani, paused his video podcast to offer his audience an incredible deal.
For just $596, an online fraud-protection company that Giuliani called "the only folks to trust that I know of” was selling four years of online defense from home-stealing “cyber thieves."
"Use code ‘Rudy’ — that’s me — and sign up for 30 free days of protection," Giuliani said, before resuming a diatribe about an international communist vote-stealing plot — and, later, another advertisement, in which he hawked dietary supplements. The episode of his YouTube series, "Rudy Giuliani’s Common Sense," has been viewed more than 500,000 times.
→ Read the complaint in Dominion v. Giuliani.
- Noah Feldman, "Dominion’s Libel Case Against Giuliani Will Be Hard to Prove," The Hill (Jan. 25)
My point is only that, to win it libel suit, Dominion will have to overcome a high burden of proof set by the First Amendment.
Nonetheless, this may be the rare case where a plaintiff is able to do so. Giuliani may survive this lawsuit, but he will have to fight hard to win. Citing lost business and irrevocable harm to its reputation, Dominion is asking for more than $1.3 billion in compensatory and punitive damages. If Giuliani loses, even a tiny fraction of the damages sought would be ruinous.
- Christiano Lima, "YouTube extends Trump suspension, slaps new restrictions on Giuliani," Politico (Jan. 26)
- "Dominion sues Trump lawyer Sidney Powell for defamation," Associated Press (Jan. 8)
- "Dominion Voting Systems employee sues Trump campaign for defamation," Reuters (Dec. 22, 2020)
Strossen, Haidt & Volokh on 'cancel culture'
- Eugene Volokh, "Nadine Strossen (Former ACLU President), Jonathan Haidt (The Coddling of the American Mind), and Me on 'Cancel Culture,'" The Volokh Conspiracy (Jan. 26)
FIRE to President Biden on campus speech
- FIRE to President Biden: Let’s work together to protect free speech and due process on campus (Jan. 20)
WASHINGTON, Jan. 20, 2021 — Today, Inauguration Day, the Foundation for Individual Rights in Education sent President Joe Biden an open letter congratulating him on his inauguration as president of the United States and urging him and his administration to protect the freedom of speech and civil liberties of America’s college students and faculty — millions of whom attend and work at schools with stifling and unconstitutional speech codes or unfair disciplinary procedures.
“Students and faculty of all political persuasions and demographic backgrounds are routinely censored and denied any semblance of a fair, impartial hearing,” wrote FIRE President and CEO Greg Lukianoff in the letter. “Through individual words and actions, and through the words and actions of federal agencies like the Department of Education, you and your administration have a tremendous opportunity to strengthen our national commitment to protecting core civil liberties on campuses nationwide.”
As with similar letters to President Donald Trump and to President Barack Obama upon their inaugurations, FIRE’s Inauguration Day letter to Biden discusses pressing civil liberties concerns in higher education. The letter additionally suggests ways the Biden administration can work to reverse harmful policies and actions that restrict free expression and threaten due process protections.
FIRE’s letter emphasizes common ground with the new administration. It recalls Biden’s commendable 2017 comments on free speech on campus when he noted his experience teaching constitutional law at Widener University and observed that "[t]he First Amendment is one of the defining features of who we are in the Bill of Rights. And to shut it down in the name of what is appropriate is simply wrong. It’s wrong."
FIRE’s letter to Biden explains the shameful prevalence of unconstitutional campus restrictions on expression. Today, FIRE’s research indicates that 85% of top public colleges and universities FIRE surveyed have speech codes that run afoul of the First Amendment. Far too many institutions of higher education employ these unconstitutional policies or other means to engage in egregious acts of censorship. In its letter, FIRE noted that threats to free speech target people across the political spectrum or for reasons unrelated to politics, and thus require a president who will defend free speech on campus whenever it is in jeopardy.
FIRE’s letter also asks the Biden administration to combat campus sexual misconduct in a manner that protects the rights of accusers and accused alike. "Since 2011, at least 151 state and federal courts have issued decisions favorable to students raising concerns about the lack of meaningful procedural protections in campus adjudications," Lukianoff wrote.
The Department of Education’s recently implemented Title IX regulations provide essential procedural protections for the accused while clearly setting forth institutions’ obligations to complainants, thereby furthering the critical task of protecting the rights of all students. FIRE urges the Biden administration to uphold and defend these important procedural protections.
"Freedom of speech and due process are in serious need of protection on our nation’s campuses," Lukianoff cautioned in the letter.
First Amendment Watch to host webinar on journalistic solutions to misinformation
- "Journalistic Solutions to Misinformation and Restoring Public Trust in the News," First Amendment Watch (Jan. 20)
On October 13, 2020, New York Times Magazine writer Emily Bazelon published an article titled “The First Amendment in the Age of Disinformation” in which she argued that the country was experiencing an “information crisis” where lies spread faster than truth. Bazelon’s article spoke to a new anxiety about the health of our current public discourse. According to an NPR/Ipsos poll in December 2020, more than 8 out of 10 Americans (83%) say they are concerned about the spread of false information, especially about the coronavirus and vaccines. A separate survey led by PBS NewsHour, NPR, and Marist Poll in January 2020 found that 59 percent of Americans say it is difficult to spot intentionally misleading stories.
Join us on February 10th, at 2 p.m. EST for an hour-long conversation with Nora Benavidez, Director of U.S. Free Expression Programs at PEN America, and Soraya Ferdman, Staff Writer at First Amendment Watch, on the spread of false information. While the government can’t punish people for publishing “fake news,” journalists and readers can help slow its spread and restore the public’s trust in the news, as we’ll discuss.
The Q&A is part of our #FAWPublicForum event series, a monthly conversation with First Amendment experts on contemporary free speech issues.
→Register for the discussion.
Mchangama on government mandated content moderation
- Jacob Mchangama, "Rushing to Judgment: Examining Government Mandated Content Moderation," Lawfare (Jan. 26)
The tensions between the legitimate political aim of removing unlawful content and the protection of online freedom of expression is a thorny issue with no clear viable equilibrium. To shed further light on how to reconcile the competing interests, Justitia’s Future of Free Speech Project has made a preliminary attempt to assess the duration of national legal proceedings in hate speech cases in selected Council of Europe member states. The length of domestic criminal proceedings is then compared with the duration of government-mandated removals of illegal hate speech under laws such as the NetzDG. Using freedom of information requests, the report studies the length of criminal hate speech proceedings in five member states of the Council of Europe: Austria, Denmark, France, Germany and the United Kingdom. The project is based on these jurisdictions as they have passed or are considering stringent intermediary liability legislations to tackle hate speech and other unlawful content. Due to the paucity of data from the selected countries, the project also studied all hate speech cases from the European Court of Human Rights (ECHR) and extracted the relevant dates and time periods from the beginning of the proceeding until its resolution at first instance.
- Read the entire report: "Rushing to Judgment: Are Short Mandatory Takedown Limits for Online Hate Speech Compatible with The Freedom of Expression? - The Future of Free Speech”
How would John Stuart Mill, Alexis De Tocqueville, and George Orwell react to the banning of Donald Trump on social media? Read Mchangama's ArcDigital article on why “Free speech is about more than legal standards”:
However, the larger ecosystem needed for free speech to thrive does not begin or end with the law. At least as important is what might be called the culture and practice of free speech. This culture is embedded in the attitudes and tolerance (or lack thereof) of citizens and the institutions that create, facilitate, and distribute speech. The history of free speech and some of the greatest champions of this fundamental freedom can help us think more clearly about the importance of defending this principle, even when no legally protected rights are threatened by the government.
Schafer on NYT v. Sullivan and Justice Thomas
- Matthew Schafer, "Actual Malice: The Bit That Justice Thomas Left Out”
The Supreme Court did not, in 1964, create a fundamental free speech protection out of thin air as Justice Thomas has argued. But will Thomas’ colleagues give him a chance to convince them it did?
Justice Clarence Thomas has called on the Supreme Court to overrule New York Times v. Sullivan — the case that occasioned “dancing in the streets.” Specifically, he has asked his colleagues to reconsider the “actual malice” rule recognized in Sullivan.
That rule requires public official plaintiffs to plead, and ultimately to prove, that defendants knew a defamatory allegation was false or were on high alert that it probably was.
This requirement, courts have observed, is a “daunting” one. Some have called it “impossible.” Whatever it is, for the last fifty-six years, it has saved countless news organizations from the financial ruin of defamation lawsuits brought by thin-skinned public officials.
So why reconsider a rule that has defined freedom of the press in modern America?
Well, according to Thomas, 'The constitutional libel rules adopted by the Court in Sullivan and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law."
- "More on originalism and the First Amendment, enter Matthew Schafer," FAN 274 (Oct. 7, 2020)
So to Speak podcast: Free speech after the Jan. 6 Capitol riot
This episode of So to Speak: The Free Speech Podcast, we are joined by Reason Magazine Senior Editor Robby Soave and FIRE President and CEO Greg Lukianoff to discuss the Washington, DC Capitol riot of Jan. 6, 2021 and the effect it has had — and will have — on free speech, particularly speech on the internet.
Robby Soave is the author of the forthcoming book “Tech Panic.”
- Daniel R. Mandelker, "Billboards, Signs, Free Speech, and The First Amendment," Real Property, Trust & Estate Law Journal (2020)
This Article reviews the competing demands free speech law makes when applied to sign and billboard ordinances. It describes the free speech doctrines that apply, explains ambiguities and conflicts, and makes recommendations for sign regulations that can avoid constitutional problems. The Article first explains how state courts decided the constitutionality of billboard controls before free speech law applied. It then describes the litigation problems municipalities face in sign litigation, and considers the overbreadth and severability doctrines that litigants can use to strike sign ordinances down.
Ordinances that regulate signs typically regulate commercial speech. The Article explains the criteria the Supreme Court adopted for laws that regulate commercial speech, and how the Court liberally applied these criteria in a case upholding an ordinance that prohibited billboards. Lower court cases that applied this case are discussed next. They followed the Supreme Court’s approach in billboard cases but sometimes added new requirements.
The Article then describes the free speech time, place, and manner rules that are an alternative to commercial speech doctrine, and how courts apply these rules to sign ordinances. Regulations for digital billboards are discussed next. The Article concludes by discussing the constitutional protections courts provide for noncommercial speech, and the constitutional restrictions they require for signs that regulate content.
- David L. Hudson, Jr., "The Fighting Words Doctrine: Alive and Well in the Lower Courts," University of New Hampshire Law Review (2020)
The fighting words doctrine is alive and well in the lower courts. The first part of this article briefly explains how the fighting words doctrine has fared in the U.S. Supreme Court. These results would seem to indicate that it would be rare indeed for a defendant’s words to fall under the fighting words exception. That is not always the case.
The next part of this article provides a sampling of decisions in which lower courts have rejected First Amendment-based defenses to disorderly conduct, breach of the peace, or similar charges based on the fighting words doctrine. The final part of the essay then explains the specific factors or facts that cause lower courts to find that certain expression constitutes unprotected fighting words rather than protected speech.
- Judith P Miller, "Defending Speech Crimes," University of Chicago Legal Forum (2020)
- David L. Hudson & Jacob David Glenn, "Fixed Stars: Famous First Amendment Phrases and Their Indelible Impact," Charleston Law Review (2020)
- "ACLU sues Portsmouth over resident's critical signs," Associated Press (Jan. 25)
- Alex Morey, "FIRE warns University of Illinois at Chicago over investigation into law professor’s exam question," FIRE (Jan. 22)
- "First Amendment group asks R.I. governor to stop avoiding reporters," Associated Press (Jan. 21)
2020-2021 SCOTUS term: Free expression & related cases
- Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Mahanoy Area School District v. B.L.
- Thomas More Law Center v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
- Trump v. Knight First Amendment Institute
- Stockman v. United States
- Institute for Free Speech v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Hurchalla v. Lake Point Phase
- Bruni v. City of Pittsburgh
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- Rentberry, Inc. v. City of Seattle
- Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted)
- Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)
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