Gordon M. Price v. Merrick B. Garland, Attorney General, et al.

The U.S. District Court for the District of Columbia enjoined enforcement of 54 U.S.C. § 100905, which directs the Secretary of the Interior to “require a permit and [] establish a reasonable fee for commercial filming activities” on designated federal lands. Noncommercial filming and commercial newsgathering are exempt, and the fee is a revenue-generating measure unrelated to administrative costs. The court held the law is a content-based prior restraint, that it fails strict scrutiny, and that it imposes a tax on speech. A divided panel of the D.C. Circuit reversed, holding that filming is “merely a noncommunicative step in the production of speech.” Judge Tatel dissented, describing the majority’s reasoning as “untethered from our court’s precedent and that of our sister circuits.” This raises the following questions:

1. Whether filmmaking is “communicative activity” protected by the First Amendment or merely “a noncommunicative step in the production of speech” subject to a diminished level of constitutional scrutiny?

2. Whether First Amendment protections in public forums can be diluted by disaggregating the constituent parts of expressive activities and applying diminished constitutional scrutiny to information gathering?

3. Whether requiring commercial filmmakers to obtain a permit and pay a fee to film on public lands without regard to their impact on public property violates the First Amendment?