Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 1 of 35
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`GORDON M. PRICE,
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`Plaintiff,
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`v.
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`WILLIAM P. BARR, U.S. Attorney
`General, et al.,
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`Defendant.
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`Civil Action No. 19-3672 (CKK)
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`
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`MEMORANDUM OPINION
`(January 22, 2021)
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`Plaintiff Gordon M. Price is an independent filmmaker from Yorktown, Virginia. In this
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`action, Mr. Price asserts a facial constitutional challenge to the permitting requirements imposed
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`on commercial filming by 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5
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`and 36 C.F.R. § 5.5. Mr. Price brings this action against the Attorney General of the United States
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`of America, the Secretary of the Department of the Interior, and the Director of the National Park
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`Service (“NPS”) (collectively, “Defendants”). Defendants have now moved for a judgment on the
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`pleadings, seeking the complete dismissal of Mr. Price’s case. See Defs.’ Mot. at 1. In turn, Mr.
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`Price has filed a cross-motion for a judgment on the pleadings in his favor. See Pl.’s Mot. at 1.
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`Upon consideration of the briefing, the relevant authorities, and the record as a whole,1 the
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`Court concludes that Mr. Price has established his claim on the merits that the restrictions on
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`1 The Court’s consideration has focused on the following briefing and material submitted by the parties:
`• Compl., ECF No. 1;
`• Am. Answer, ECF No. 13;
`• Defs.’ Mem. in Supp. of Def.’s Mot. for J. on the Pleadings (“Defs.’ Mot.”), ECF No. 18;
`• Pl.’s Cons. Mem. of P. & A. in Supp. of Cross-Mot. for J. on the Pleadings and in Opp’n to Defs.’
`Mot. (“Pl.’s Mot.”), ECF No. 25-1;
`• Defs.’ Reply in Supp. of Defs.’ Mot. & Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 31; and
`• Pl.’s Reply to Defs.’ Opp’n (“Pl.’s Reply”), ECF No. 33.
`In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
`assistance in rendering a decision. See LCvR 7(f).
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`Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 2 of 35
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`commercial filming set forth in 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R.
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`Part 5 and 36 C.F.R. § 5.5, violate the First Amendment. Accordingly, the Court DENIES
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`Defendants’ motion for a judgment on the pleadings and GRANTS Mr. Price’s cross-motion for
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`a judgment on the pleadings. As set forth below, the Court will enter a declaratory judgment and
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`permanent injunction in Mr. Price’s favor.
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`I. BACKGROUND
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`A. Section 100905
`Mr. Price raises a facial constitutional challenge to 54 U.S.C. § 100905 and its
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`implementing regulations, 43 C.F.R. Part 5 and 36 C.F.R. § 5.5. See Compl. ¶ 1. Section 100905
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`provides that the Secretary of the Interior “shall require a permit and shall establish a reasonable
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`fee for commercial filming activities or similar projects in a System unit.” 54 U.S.C.
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`§ 100905(a)(1). The statute’s paid permit requirement, however, does not apply to non-
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`commercial filming. See id. Separately and in addition to the permit fee required for commercial
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`filming by § 100905(a)(1), the Secretary of the Interior “shall [also] collect any costs incurred as
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`a result of filming activities or similar projects, including administrative and personnel costs.” Id.
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`§ 100905(b). Additionally, § 100905(c) imposes a distinct permit requirement for “still
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`photography,” applicable in limited circumstances. Id. § 100905(c)(1)–(2). Section 100905’s
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`permitting regime for “commercial filming” and “still photography” applies to “any area of land
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`and water administered by the Secretary [of the Interior], acting through the Director [of the
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`National Park Service], for park, monument, historic, parkway, recreational, or other purposes.”
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`Id. § 100501 (defining a “system unit”); see also id. § 100102(1)–(6). Section 100905 itself does
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`not define the terms “commercial filming” or “still photography.” See id. § 100905; Compl. ¶ 24.
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`The permitting regime required by § 100905 promotes two principal goals: land
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`preservation and rent extraction. As to the former, Congress endeavored to reduce “the impairment
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`Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 3 of 35
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`of the values and resources which are to be protected on federal lands.” H.R. Rep. 106-75, at 3
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`(1999). Accordingly, § 100905 prohibits the issuance of a permit for “any filming” or “still
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`photography” that threatens “a likelihood of resource damage.” 54 U.S.C. § 100905(d)(1). Section
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`100905, however, also furthers the purpose of rent extraction. On its face, § 100905 states that the
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`permit fees imposed on “commercial filming” “shall provide a fair return to the United States,”
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`measured in relation to the “number of days of the filming activity,” the “size of the film crew
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`present,” the “amount and type of equipment used,” id. § 100905(a)(1)(A)–(C), or any other factor
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`the Secretary of the Interior deems “necessary,” id. § 100905(a)(2). All such fees collected under
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`§ 100905 “shall be available for expenditure by the Secretary [of the Interior], without further
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`appropriation and shall remain available until expended.” Id. § 100905(e)(1). Notably, the
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`statute’s legislative history emphasizes the fact that “high-grossing films” are produced in national
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`parks and indicates that § 100905’s purpose “is to authorize the Secretary of the Interior . . . to
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`assess fees for commercial filming activities on Federal lands.” S. Rep. 106-67, at 2–3 (1999).
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`Relatedly, Congress has declared “that it is the policy of the United States that the United States
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`receive fair market value of the use of the public lands and their resources.” 43 U.S.C.
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`§ 1701(a)(9).
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`To implement the permitting regime required by § 100905, the Department of the Interior
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`(“DOI”) promulgated the regulations found at 43 C.F.R. Part 5. The regulations thereunder
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`“cover[] commercial filming and still photography activities on lands and waters administered by
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`the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife
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`Service.” 43 C.F.R. § 5.1. In accordance with § 100905, the DOI implementing regulations
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`require a permit for “[a]ll commercial filming.” Id. § 5.2(a). The DOI regulations define
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`“commercial filming” as:
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`[T]he 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. Examples include, but are not limited to, feature film, videography,
`television broadcast, or documentary, or other similar projects. Commercial filming
`activities may include the advertisement of a product or service, or the use of actors,
`models, sets, or props.
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`Id. § 5.12. The DOI regulations, however, specifically exempt “news-gathering” activities from
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`the permitting regime. Id. § 5.4(a). For the purposes of 43 C.F.R. Part 5, “news” is defined as
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`“information that is about current events or that would be of current interest to the public, gathered
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`by news-media entities for dissemination to the public.” Id. § 5.12. The DOI regulations also set
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`forth a separate set of less restrictive permitting criteria for “still photography.” Id. § 5.2(b).
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`Finally, the DOI regulations enumerate seven permissible bases for the denial of a
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`commercial filming or still photography permit. See id. § 5.5(a)–(g). Specific to the national parks
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`themselves, a permit may be denied where the commercial filming or still photography would
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`“[r]esult in unacceptable impacts or impairment to National Park Service resources or values.” Id.
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`§ 5.5(d). Failure to comply with any provision of 43 C.F.R Part 5, including the obligation to
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`procure a permit for commercial filming or still photography, is a violation of 36 C.F.R. § 5.5.
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`Thereunder, a permit violation carries the potential for fines and up to six months in prison. See
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`18 U.S.C. § 1865; 36 C.F.R. § 1.3.
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`B. Mr. Price’s Commercial Filming
`Mr. Gordon Price is a part-time independent filmmaker who lives and works in Yorktown,
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`Virginia. See United States v. Price, No. 4:19-po-180-DEM (E.D. Va. July 31, 2019), ECF No.
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`10-1 (Price Decl.), ¶ 1. In February 2017, Mr. Price and a colleague began filming an independent
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`feature entitled Crawford Road about “a stretch of road in York County, Virginia, that has long
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`been the subject of rumors of hauntings and was the location of unsolved murders.” Id. ¶ 2. Mr.
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`Price filmed some Crawford Road scenes “in areas open to the general public at about four
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`locations within the Yorktown Battlefield in the Colonial National Historical Park,” which is
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`property administered by NPS. Id. ¶ 8. Mr. Price shot multiple scenes on the Yorktown Battlefield,
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`as well as a location known as “Crybaby Bridge” along Crawford Road. Id. ¶ 9. No more than
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`four people were present during this filming, and Mr. Price used only a camera tripod and a
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`microphone, without any “heavy equipment,” for his recordings in the park. Id. Mr. Price,
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`however, “neither sought nor received a permit from [NPS] before filming on the Battlefield.” Id.
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`¶ 10.
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`Crawford Road premiered at a restaurant in Newport News, Virginia on October 17, 2018
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`before a crowd of approximately 250 people. Id. ¶¶ 3–4. The film garnered some attention in the
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`local press and on social media sites. See id. ¶¶ 5–6. In December 2018, however, two NPS
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`officers located Mr. Price at work and “issued him a violation notice for failure to obtain a
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`commercial filming permit under 36 C.F.R. § 5.5(a).” Id. ¶ 11; see also United States v. Price,
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`No. 4:19-po-180-DEM (E.D. Va. Mar. 26, 2019), ECF No. 1 (Not. of Violation), at 1. Mr. Price
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`subsequently appeared before the United States District Court for the Eastern District of Virginia,
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`and, after retaining counsel, challenged his 36 C.F.R. § 5.5 violation on grounds that § 100905 was
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`“facially invalid as a content-based prior restraint of freedom of speech.” United States v. Price,
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`No. 4:19-po-180-DEM (E.D. Va. July 31, 2019), ECF No. 9 (Mot. to Dismiss), at 1. In response,
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`the government elected to dismiss the charge against Mr. Price rather than litigating the
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`constitutional question raised, explaining that “the interests of justice [were not] served by
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`pursuing this prosecution.” United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 27,
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`2019), ECF No. 19 (Gov’t Mot. to Dismiss), ¶ 6.
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`Nonetheless, the government maintained that § 100905’s permitting regime was
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`constitutional, that all commercial filming within NPS’s jurisdiction still required a permit, and
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`that “failure to comply with any provision of 43 CFR part 5 is a violation.” Id. ¶¶ 2–5. As such,
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`“the government did not suggest in any way that it would refrain from issuing further violation
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`notices to Mr. Price if he films on federal land in the future.” Compl. ¶ 53; Am. Answer ¶ 53.
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`Ultimately, the district court dismissed the criminal case against Mr. Price and found that the
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`government’s voluntary dismissal deprived the court of jurisdiction to consider the merits of Mr.
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`Price’s First Amendment challenge to § 100905 and its implementing regulations. See United
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`States v. Price, No. 4:19-po-180-DEM (E.D. Va. Nov. 1, 2019), ECF No. 23 (Order), at 4. The
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`district court, however, advised Mr. Price that he could still “assert his constitutional claims in a
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`civil action.” Id.
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`Following the dismissal of the charge against Mr. Price, the specter of future violations
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`under § 100905 had at least two effects on Mr. Price’s conduct. First, Mr. Price altered his plans
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`for his original Crawford Road film. After receiving the 36 C.F.R. § 5.5 violation notice, Mr.
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`Price “canceled upcoming screenings of Crawford Road and reedited [the film] to delete footage
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`that had been taken on property covered by the charge.” Compl. ¶ 46; Am. Answer ¶ 46. He also
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`suspended ongoing negotiations regarding the distribution of the film and presently remains unable
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`to obtain distribution for Crawford Road. See Compl. ¶ 47; Am. Answer ¶ 47. Second, Mr. Price
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`altered the plans for his new film entitled Ten Doors, United States v. Price, No. 4:19-po-180-
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`DEM (E.D. Va. Aug. 29, 2019), ECF No. 20-1 (Price Decl.), ¶ 3, which was to “include a re-
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`creation of the Saltville Massacre that occurred on October 3, 1864, in Saltville, Virginia.” Id. In
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`preparation for this second film, Mr. Price had scouted filming locations “that included the
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`Yorktown Battlefield and the Manassas National Battlefield,” both federal parks under NPS
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`jurisdiction. See id. ¶ 4. Mr. Price, however, has not proceeded with any filming at these sites
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`out of concern for a subsequent citation and penalty under § 100905 and its implementing
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`regulations. See id.
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`On December 9, 2019, Mr. Price filed a civil complaint with this Court challenging the
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`facial constitutionality of 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5
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`and 36 C.F.R. § 5.5. See Compl. ¶ 1. In his complaint, Mr. Price asks this Court for “[a]
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`declaratory judgment stating that the requirements in 54 U.S.C. § 100905, 43 C.F.R. Part 5, and
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`36 C.F.R. § 5.5 that those engaged in ‘commercial filming’ must obtain permits and pay fees are
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`unconstitutional.” Compl. at Prayer for Relief, ¶ A. Relatedly, Mr. Price seeks “[a] permanent
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`injunction enjoining the permit and fee requirements for commercial filming in 54 U.S.C.
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`§ 100905, 43 C.F.R. Part 5, and 36 C.F.R. § 5.5, and enjoining prosecution and the imposition of
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`criminal liability thereunder.” Compl. at Prayer for Relief, ¶ B. To support his request for relief,
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`Mr. Price alleges, in Counts I through VI of his complaint, six reasons why 54 U.S.C. § 100905
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`and its implementing regulations violate the First Amendment. See Compl. ¶¶ 56–107. In Count
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`VI of his complaint, Mr. Price also alleges that 54 U.S.C. § 100905 and its implementing
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`regulations violate the equal protection component of the Fifth Amendment. See Compl. ¶¶ 103–
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`07.
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`In response to Mr. Price’s complaint, Defendants filed their answer on February 11, 2020,
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`see Answer, ECF No. 9, and, shortly thereafter, filed an amended answer to Mr. Price’s complaint
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`on April 2, 2020, see Am. Answer, ECF No. 13. Defendants then moved under Federal Rule of
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`Civil Procedure 12(c) for a judgment on the pleadings against Mr. Price. See Defs.’ Mot. at 1. In
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`turn, Mr. Price opposed Defendants’ Rule 12(c) motion and filed his own cross-motion under Rule
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`12(c) for a judgment on the pleadings against Defendants. See Pl.’s Mot. at 1. In his cross-motion,
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`Mr. Price specifically moves the Court to “declare that the requirements in 54 U.S.C. § 100905,
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`43 C.F.R. Part 5, and 36 C.F.R. § 5.5 that those engaged in ‘commercial filming’ must obtain
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`permits and pay fees are unconstitutional” and also to “permanently enjoin their enforcement and
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`any prosecution or imposition of criminal liability thereunder.” Pl.’s Mot. at 45. The parties have
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`now completed their briefing on the pending cross-motions, and those motions are ripe for this
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`Court’s review.
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`II. LEGAL STANDARD
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`The parties have each moved for a judgment on the pleadings under Federal Rule of Civil
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`Procedure 12(c). Rule 12(c) states that “[a]fter the pleadings are closed—but early enough not to
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`delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “[A] Rule
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`12(c) motion asks the court to render a judgment on the merits by looking at the substance of the
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`pleadings and any judicially noted facts.” Murphy v. Dep’t of Air Force, 326 F.R.D. 47, 49 (D.D.C.
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`2018) (quotation omitted). “Thus, a Rule 12(c) motion requires the court to consider and decide
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`the merits of the case, on the assumption that the pleadings demonstrate that there are no
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`meaningful disputes as to the facts such that the complaint’s claims are ripe to be resolved at this
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`very early stage in the litigation.” Id. (citing 5C Charles Alan Wright & Arthur R. Miller, Federal
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`Practice & Procedure § 1369 (3d ed. 2004)).
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`To prevail on a Rule 12(c) motion, the “moving party [must] demonstrate[ ] that no material
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`fact is in dispute and that it is entitled to judgment as a matter of law.” Schuler v.
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`PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters v. Nat’l R.R.
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`Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)). “[T]he Rule 12(c) burden is substantial:
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`if the Rule 12(c) movant cannot show both that there is no material dispute of fact (as reflected in
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`the parties’ pleadings) and that the law is such that the movant is entitled to judgment as a matter
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`of law, then the motion for judgment on the pleadings must be denied.” Murphy, 326 F.R.D. at 49
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`(emphasis in original).
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`III. DISCUSSION
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`For the reasons set forth herein, the Court concludes that Mr. Price has established Article
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`III standing to pursue his claim. Mr. Price has also established that 54 U.S.C. § 100905 and its
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`implementing regulations impose a content-based restriction on expressive speech in public
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`forums that runs afoul of the First Amendment. Accordingly, the Court DENIES Defendants’
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`motion for a judgment on the pleadings, and the Court GRANTS Mr. Price’s cross-motion for a
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`judgment on the pleadings. The Court shall enter a declaratory judgment and permanent injunction
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`in Mr. Price’s favor.
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`A. Article III Standing
`“The Constitution grants Article III courts the power to decide ‘Cases’ or ‘Controversies.’”
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`Carney v. Adams, 141 S. Ct. 493, 498 (2020) (quoting U.S. CONST. Art. III, § 2). “The doctrine
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`of standing implements this requirement” by demanding “that a case embody a genuine, live
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`dispute between adverse parties.” Casey, 141 S. Ct. at 498. “To establish Article III standing, a
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`plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury
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`and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
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`favorable decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014) (quoting
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`Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). In this case, Defendants argue that
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`Mr. Price lacks Article III standing to challenge the constitutionality of § 100905 and its
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`implementing regulations because he “has failed to establish a sufficient injury in fact.” See Defs.’
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`Mot. at 10. The Court disagrees.
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`Mr. Price raises a classic First Amendment pre-enforcement challenge to § 100905 and its
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`implementing regulations. “Pre-enforcement review
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`is permitted where
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`the
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`threatened
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`enforcement of a law is ‘sufficiently imminent.’” Woodhull Freedom Found. v. United States, 948
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`F.3d 363, 370 (D.C. Cir. 2020) (quoting SBA, 573 U.S. at 159). In this context, “a plaintiff satisfies
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`the injury-in-fact requirement where he alleges an intention to engage in a course of conduct
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`arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
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`credible threat of prosecution thereunder.” Woodhull, 948 F.3d at 370 (quotations omitted). The
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`United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) “has
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`interpreted the Supreme Court’s pre-enforcement standing doctrine broadly in the First
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`Amendment sphere,” Sandvig v. Sessions, 315 F. Supp. 3d 1, 15 (D.D.C. 2018), and “[a]n actual
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`arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law,”
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`Woodhull, 948 F.3d at 370 (quotation omitted).
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`Mr. Price meets the pre-enforcement standard for injury-in-fact in this case. First, Mr.
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`Price has sufficiently “allege[d] an intention to engage” in his proposed filmmaking activity. Id.
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`As set forth above, Mr. Price is an independent filmmaker. See Compl. ¶ 36. Mr. Price is
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`“presently working” on a new commercial film entitled Ten Doors, about an historical massacre
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`in Saltville, Virginia in 1864. See United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug.
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`29, 2019), ECF No. 20-1 (Price Decl.), ¶¶ 3–4. For this film, Mr. Price has actively scouted filming
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`locations within two separate national park sites: Yorktown Battlefield and the Manassas National
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`Battlefield. See id. ¶ 4. Moreover, these filming sites are geographically proximate to Mr. Price,
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`himself a resident of Yorktown, Virginia, see id. ¶ 2, and Mr. Price has, in fact, already carried out
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`similar commercial filming at Yorktown Battlefield for his previous production of Crawford Road,
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`see Compl. ¶ 38; Am. Answer ¶ 38. For these reasons, Mr. Price has presented a sufficiently
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`“credible statement” of his intention to conduct commercial filming within a national park.
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`ANSWER Coal. v. District of Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009); see also Woodhull,
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`948 F.3d at 370.
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`Next, the Court must consider whether Mr. Price’s proposed course of conduct implicates
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`a “constitutional interest.” Woodhull, 948 F.3d at 370. It does. Filming scenes within selected
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`locations, as Mr. Price plans to do here at Yorktown Battlefield and the Manassas National
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`Battlefield, is a constituent part of creating a movie. See Citizens United v. Fed. Election Comm’n,
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`558 U.S. 310, 336 (2010) (“Laws enacted to control or suppress speech may operate at different
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`points in the speech process.”). Accordingly, Mr. Price’s filmmaking at these parks constitutes a
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`form of expressive speech protected by the First Amendment. See disc. infra at § III.B.1; Animal
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`Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018) (“It defies common sense to
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`disaggregate the creation of the video from the video or audio recording itself. The act of recording
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`is itself an inherently expressive activity.”). Mr. Price argues this point forcefully in his opening
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`brief, see Pl.’s Mot. at 9–12, and Defendants appear to concede the argument in their opposition
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`brief by not responding. Regardless, the Court is convinced that Mr. Price’s filmmaking
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`constitutes a form of expressive speech protected by the First Amendment. See disc. infra at
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`§ III.B.1.
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`Finally, Mr. Price has also established that his proposed filmmaking creates “a credible
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`threat of prosecution.” Woodhull, 948 F.3d at 370. Where a plaintiff “challenge[s] [a] law[]
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`burdening expressive rights” and offers a “credible statement . . . of intent to commit violative
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`acts,” he may rely upon the “conventional background expectation that the government will
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`enforce the law.” United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674, 739
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`(D.C. Cir. 2016) (quotation omitted). This is particularly true in the First Amendment context,
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`where the willingness of the courts “to permit pre-enforcement review is at its peak.” Id. at 740.
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`Consequently, Mr. Price could very well satisfy the “threat of prosecution” standard absent any
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`showing of prior prosecutions under § 100905 and its implementing regulations. See Sandvig, 315
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`F. Supp. 3d at 19. But, of course, in this case Mr. Price does not rely on the hypothetical. NPS
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`officials have already charged Mr. Price under 36 C.F.R. § 5.5 for filming without a permit at
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`“Yorktown Battlefield in the Colonial National Historical Park.” Compl. ¶ 38; see also United
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`States v. Price, No. 4:19-po-180-DEM (E.D. Va. Mar. 26, 2019), ECF No. 1 (Not. of Violation),
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`at 1. And even while the government dismissed that charge against Mr. Price, it continued to
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`defend the constitutionality of § 100905 and its enforcement against commercial filmmakers. See
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`United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 27, 2019), ECF No. 19 (Gov’t Mot.
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`to Dismiss), ¶¶ 2–5. Now, Mr. Price plans to shoot another commercial film at Yorktown
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`Battlefield—the very same site where he received his initial violation. See Compl. ¶ 54. On this
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`record, Mr. Price has convincingly demonstrated a credible threat of prosecution under § 100905
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`and its implementing regulations.
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`In sum, Mr. Price has adequately demonstrated injury-in-fact in this pre-enforcement action
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`to challenge the restrictions on commercial filming imposed by § 100905 and its implementing
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`regulations. Woodhull, 948 F.3d at 370. Defendants, moreover, do not challenge the remaining
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`two elements of Article III standing: traceability and redressability. See SBA, 573 U.S. at 158.
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`And for good reason. The restriction on Mr. Price’s ability to film at Yorktown Battlefield and
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`the Manassas National Battlefield is clearly traceable to § 100905 and its implementing
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`regulations. Furthermore, any unconstitutional infringement this regime might effectuate would
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`be redressable through an injunction against its enforcement, the very relief Mr. Price now seeks.
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`For these reasons, Mr. Price has satisfied each element of Article III standing in this action. See
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`SBA, 573 U.S. at 157–58.
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`There is, however, an important limitation to Mr. Price’s Article III standing. As noted
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`above, § 100905 imposes two distinct permitting requirements: one for commercial filming and
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`Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 13 of 35
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`one for photography. See 54 U.S.C. § 100905(a), (c). The regulations in 43 C.F.R. Part 5 similarly
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`distinguish between permits for commercial filming on the one hand, see 43 C.F.R. § 5.2(a), and
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`for photography on the other, see id. at § 5.2(b). While Mr. Price has established a constitutional
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`injury under the commercial filming regulations, the Article III “case” and “controversy”
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`requirement still separately constrains this Court’s authority to review the distinct provisions in §
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`100905 and 43 C.F.R. Part 5 pertaining to photography. See Williams v. Lew, 819 F.3d 466, 476
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`(D.C. Cir. 2016). This is problematic because the record in this case relates exclusively to Mr.
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`Price’s commercial filming efforts and says nothing of his photography ambitions. See Compl. ¶
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`54; United States v. Price, No. 4:19-po-180-DEM (E.D. Va. Aug. 29, 2019), ECF No. 20-1 (Price
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`Decl.), ¶¶ 3–4. In this way, Mr. Price has not established any “intention” to carry out photography
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`in a manner that would credibly threaten prosecution under the photography permitting
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`requirements of § 100905 and its implementing regulations. Woodhull, 948 F.3d at 370. Such a
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`“controversy” is purely hypothetical at this time.
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`Therefore, the Court “declines to scrutinize the constitutionality of those provisions of
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`[§ 100905 and its implementing regulations] that are not before it in this case.” Am. Soc. of Ass’n
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`Executives v. United States, 23 F. Supp. 2d 64, 71 (D.D.C. 1998), aff’d sub nom. Am. Soc. of Ass’n
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`Executives v. United States, 195 F.3d 47 (D.C. Cir. 1999). Where a plaintiff’s constitutional injury
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`derives from a specific statutory or regulatory provision, a court should constrain its review to the
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`alleged defect therein. See id.; Tanner Advert. Grp., L.L.C. v. Fayette Cty., 451 F.3d 777, 795
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`(11th Cir. 2006) (Birch, J., concurring) (“[S]tanding to make a facial challenge to a particular
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`provision under the overbreadth doctrine does not give the plaintiff standing to challenge other
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`sections, or the entire statutory scheme, if the plaintiff was not injured thereunder.”). To opine on
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`the constitutionality of statutory provisions unrelated to the actual “case” or “controversy” before
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`Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 14 of 35
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`the Court would contravene the ethos of the Article III standing doctrine. See Spokeo, Inc. v.
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`Robins, 136 S. Ct. 1540, 1548 (2016). Mr. Price implicitly acknowledges this limitation, as he
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`requests injunctive relief specific to the “commercial filming” provisions of 54 U.S.C. § 100905
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`and 43 C.F.R. Part 5. See Pl.’s Mot. at 45; Compl., at Prayer for Relief, ¶¶ A–B. The Court thinks
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`this wise. As such, the Court concludes that Mr. Price has established Article III standing only to
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`challenge the permit requirements for “commercial filming” in § 100905 and its implementing
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`regulations. The Court will limit its constitutional review accordingly.
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`B. First Amendment Analysis
` “The First Amendment prohibits laws ‘abridging the freedom of speech.’” Minnesota
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`Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018) (quoting U.S. CONST. amend. I). In his motion,
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`Mr. Price argues that 54 U.S.C. § 100905 and its implementing regulations, 43 C.F.R. Part 5 and
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`36 C.F.R. § 5.5, violate this First Amendment right. See Pl.’s Mot. at 6–7, 45. Accordingly, Mr.
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`Price asserts a facial challenge to 54 U.S.C. § 100905 and its implementing regulations. See Pl.’s
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`Mot. at 16; Compl. ¶ 2. Such a facial challenge is appropriate where a plaintiff, like Mr. Price
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`here, maintains that a law is overbroad and impermissibly restricts “‘a substantial amount of speech
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`that is constitutionally protected.’” Boardley v. U.S. Dep’t of Interior, 615 F.3d 508, 513 (D.C.
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`Cir. 2010) (quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992)); see also
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`disc. infra at § III.B.3 (discussing overly broad scope of § 100905 and its implementing
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`regulations).
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`“Claims under the Free Speech Clause of the First Amendment are analyzed in three steps.”
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`Boardley, 615 F.3d at 514. First, the Court must determine “whether the activity at issue is speech
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`protected by the First Amendment.” Id. (quotation omitted). Second, the Court must “identify the
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`nature of the forum, because the extent to which the Government may limit access depends on
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`whether the forum is public or nonpublic.” Id. And third, the Court must “assess whether the
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`Case 1:19-cv-03672-CKK Document 36 Filed 01/22/21 Page 15 of 35
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`government’s justifications for restricting speech in the relevant forum satisfy the requisite
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`standard.” Id. The Court will apply this framework to Mr. Price’s facial First Amendment
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`challenge to § 100905 and its implementing regulations, addressing each prong of the analysis in
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`turn.
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`1. Filming A Movie Constitutes Expressive Speech Protected By The First
`Amendment
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`
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`As discussed above, filming a movie is expressive speech protected by the First
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`Amendment. Two foundational First Amendment principles compel this conclusion. First, “the
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`Supreme Court has long recognized that the First Amendment protects film” itself. Turner v.
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`Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017) (citing Joseph Burstyn, Inc. v. Wilson, 343
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`U.S. 495, 502 (1952) (“[W]e conclude that expression by means of motion pictures is included
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`within the free speech and free press guaranty of the First and Fourteenth Amendments.”)); see
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`also Jacobellis v. Ohio, 378 U.S. 184, 187 (1964) (“Motion pictures are within the ambit of the
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`constitutional guarantees of freedom of speech and of the press.”). Second, the Supreme Court
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`has found that “the creation and dissemination of information are speech within the meaning of
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`the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (emphasis added);
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`see also Citizens United, 558 U.S. at 336 (“Laws enacted to control or suppress speech may operate
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`at different points in the speech process.”). Taken together, these First Amendment principles
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`indicate that the creation of a film must also fall within the ambit of the First Amendment’s
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`protection of freedom of expression.
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`To find otherwise, would artificially disconnect an integral piece of the expressive process
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`of filmmaking. Indeed, “[i]t defies common sense to disaggregate the creation of the video from
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`the video or audio recording itself.” Animal Legal Def. Fund, 878 F.3d at 1203. Applying this
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`reasoning, multiple circuit courts have granted First Amendment pr