United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 31, 2022 Decided August 23, 2022

No. 21-5073

GORDON M. PRICE,

APPELLEE

v.

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS 

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, ET 

AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-03672)

Joseph F. Busa, Attorney, U.S. Department of Justice, 

argued the cause for appellants. With him on the briefs were 

Brian M. Boynton, Acting Assistant Attorney General, Michael 

S. Raab and Joshua M. Salzman, Attorneys. 

Robert Corn-Revere argued the cause for appellee. With 

him on the brief was Patrick J. Curran Jr.

Glenn E. Roper was on the brief for amici curiae Pacific 

Legal Foundation and Anthony Barilla in support of appellee.
2

Mickey H. Osterreicher and Alicia Wagner Calzada were 

on the brief for amici curiae National Press Photographers 

Association, et al. in support of appellee.

Before: HENDERSON and TATEL*, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge 

GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Senior Circuit Judge: Gordon Price is an 

independent filmmaker. He filmed parts of a feature film on 

land administered by the National Park Service (NPS) without 

having obtained the requisite permit and having paid the 

requisite fee. The Government charged him with a 

misdemeanor but later dismissed the charge. Price then sued 

for declaratory and injunctive relief, arguing the permit-andfee requirements are facially unconstitutional under the First 

Amendment to the Constitution of the United States. The 

district court agreed with Price, holding the permit-and-fee 

requirements do not satisfy the heightened scrutiny applicable

to restrictions on speech in a public forum. 

We hold that regulation of filmmaking on governmentcontrolled property is subject only to a “reasonableness” 

standard, even when the filmmaking is conducted in a public 

* Judge Tatel assumed senior status after this case was argued 

and before the date of this opinion.
3

forum. Because the permit-and-fee requirements are 

reasonable, we reverse the order of the district court. 

I. Background

A. Statutory and Regulatory Framework 

By statute, the Secretary of the Interior must “require a 

permit and . . . establish a reasonable fee for commercial 

filming activities” on land administered by the NPS. 54 U.S.C. 

§ 100905(a)(1). In keeping with this mandate, the 

implementing regulations state that “[a]ll commercial filming 

requires a permit,” and that the NPS “will require a reasonable 

location fee . . . assess[ed] . . . in accordance with a fee 

schedule . . . publish[ed] in the Federal Register.” 43 C.F.R. 

§§ 5.2(a), 5.8(a)(1),(3). The regulations go on to define 

“commercial filming” as “the 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.” Id. § 5.12. Although some news 

gathering activities fit within this definition, the regulations 

generally exempt news gathering from these requirements. Id. 

§ 5.4. 

The regulations also specify that a permit will be denied

if, among other reasons, it is likely an activity would: “(a)

Cause resource damage; (b) [u]nreasonably disrupt or conflict 

with the public’s use and enjoyment of the site; (c) [p]ose 

health or safety risks to the public; [or] (d) [r]esult in 

unacceptable impacts or impairment to National Park Service 

resources or values.” 43 C.F.R. § 5.5.

The location fee, which must be calculated to “provide a 

fair return to the United States,” is to be based upon “the 

number of days of the filming activity,” “the size of the crew,” 
4

“the amount and type of equipment present,” and any “other 

factors . . . the Secretary considers necessary.” 54 U.S.C.

§ 100905(a)(1)-(2). In addition to the location fee, the 

Secretary must recover “any costs incurred as a result of 

filming activities.” Id. 100905(b). A person convicted of 

engaging in commercial filming without obtaining a permit or 

paying a fee faces a fine and up to six months in prison. See 

18 U.S.C. § 1865; 36 C.F.R. § 1.3, 5.5(a).

These regulations are consistent with others that apply to 

various types of commercial activity conducted on land 

administered by the NPS. For instance, it is generally 

prohibited to “engag[e] in or solicit[] any business in park 

areas, except in accordance with the provisions of a permit, 

contract, or other written agreement with the United States.” 

36 C.F.R. § 5.3. Similarly, a concessionaire must contract with 

the Government and pay a “franchise fee.” 54 U.S.C. 

§ 101913. Finally, a person who wishes to provide services to 

visitors on NPS land must obtain authorization and pay “a 

reasonable fee for issuance of a commercial use authorization.” 

54 U.S.C. § 101925(a)(2)(A).

All these regulations are consistent with and implement 

the Congress’s declaration “that it is the policy of the United 

States that the United States receive fair market value of the 

use of the public lands and their resources.” 43 U.S.C. 

§ 1701(a)(9). They are also consistent with the Congress’s 

delegation of authority to “[t]he head of each agency” 

to “prescribe regulations establishing the charge for a service 

or thing of value provided by the agency,” 31 U.S.C. § 9701(b), 

because “[i]t is the sense of Congress that each service or thing 

of value provided by an agency . . . to a person . . . is to be selfsustaining to the extent possible,” id. § 9701(a). 
5

B. Facts 

The following facts are taken from the district court’s 

memorandum opinion. Plaintiff-Appellee Gordon Price is a 

part-time independent filmmaker. In 2018 he released 

Crawford Road, a film about a stretch of road in York County, 

Virginia that was the location of unsolved murders and long 

rumored to be haunted. Price filmed scenes on the Yorktown 

Battlefield in the Colonial National Historical Park, land 

administered by the NPS, without first obtaining a permit from 

the NPS and paying the fee. For those scenes, Price used a 

camera, a tripod, and a microphone. A crew of no more than

four people were present. 

Crawford Road premiered in October 2018 to an audience

of around 250 people in Newport News, Virginia. A couple of 

months later, NPS officers issued Price a “violation notice” for 

failing to obtain a commercial filming permit. 

In the wake of the criminal charge, Price canceled further 

screenings of Crawford Road and removed from it all footage 

shot on NPS land. Discussions about a distribution deal for the 

film came to an abrupt halt. Price had also been doing 

preliminary work on another film that would involve filming 

on land administered by the NPS, but he refrained from 

shooting this footage out of fear of prosecution. 

Appearing before the United States District Court for the 

Eastern District of Virginia, Price moved to dismiss the charge, 

on the ground that § 100905 and its implementing regulations 

are facially unconstitutional. Instead of litigating this question, 

the Government dismissed the charge. Deprived of jurisdiction 

to consider the merits of Price’s constitutional challenge, 

which were raised only as a defense to a criminal prosecution, 
6

the district judge dismissed the case. The Government did not, 

however, renounce its belief in the constitutionality of the 

statute and the regulations, nor did it forswear prosecution of 

Price for any future violation of the permit-and feerequirements. 

In December 2019 Price pressed his constitutional 

argument in a civil complaint filed in the United States District 

Court for the District of Columbia. Price sued several 

individuals in their official capacities: the Attorney General of 

the United States of America, the Secretary of the Department 

of the Interior, and the Deputy Director Exercising the 

Authority of Director of the NPS. Alleging that § 100905 and 

the regulations implementing it are facially unconstitutional, 

Price sought declaratory and injunctive relief. 

The parties cross-moved for judgment on the pleadings. 

The district court denied the defendants’ motion and granted

Price’s. 

In the memorandum opinion accompanying her order, the 

district judge treated the permit-and fee-requirements as 

content-based regulations of speech and determined that they 

do not withstand heightened (intermediate or strict) scrutiny. 

Price v. Barr, 514 F. Supp. 3d 171, 187-93 (D.D.C. 2021). She 

therefore concluded the requirements unconstitutionally 

restrict speech on land administered by the NPS that “courts 

have already identified as traditional public forums ” (e.g., the 

National Mall and sidewalks outside the Vietnam Veterans 

Memorial) or that the NPS has designated as forums for certain 

first amendment activities, namely, demonstrations and the 

distribution of message-bearing items, see 36 C.F.R. §§ 2.51-

2.52. 514 F. Supp. 3d at 187. Although Price did not film on 

park land that is a public forum and therefore had no basis to 

challenge the permit-and-fee regime as applied to him, the 
7

district judge concluded that the regime was unconstitutional

on its face because it “burdens substantially more speech than 

is necessary to achieve the government's substantial interests.” 

Id. at 193 (cleaned up). 

In dispensing “the strong medicine of overbreadth 

invalidation,” Virginia v. Hicks, 539 U.S. 113, 120 (2003)

(cleaned up), the district judge relied primarily upon our 

decision in Boardley v. U.S. Dep’t of Interior, 615 F.3d 508

(2010), which she deemed sufficiently analogous to “provide[]

considerable support for Mr. Price's argument.” 514 F. Supp. 

3d. at 190. The district judge did not, however, specifically 

wrestle with the “proportionality aspect of [the] overbreadth 

doctrine,” Hicks, 539 U.S. at 122 n.3; that is, despite the vast 

areas of NPS land that are not public forums, her “opinion 

contains no ‘comparing’ of valid and invalid applications 

whatever,” id., to demonstrate that the overbreadth is 

“substantial not only in an absolute sense, but also relative to 

the scope of the law’s plainly legitimate applications,” id. at 

120 (cleaned up). 

Having concluded that the permit-and-fee requirements 

are facially unconstitutional, the district judge granted Price’s 

request for declaratory relief and issued a nationwide 

injunction barring enforcement of the permit-and-fee 

requirements. 

II. Analysis

“[W]e review de novo the district court's ruling on the 

motion for judgment on the pleadings.” Nat’l Ass’n of Mfrs. v.

Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009). The Government does 

not dispute that Price has standing to pursue his claims. That, 

of course, does not relieve us of our obligation to determine 

whether we have jurisdiction. To that end, we agree with the 
8

district judge that Price “has presented a sufficiently credible 

statement of his intention to conduct commercial filming 

within a national park,” thereby implicating a constitutional 

interest, 514 F. Supp. 3d at 182 (cleaned up), and “has also 

established that his proposed filmmaking creates a credible 

threat of prosecution,” id. at 183 (cleaned up); see Woodhull 

Freedom Found. v. United States, 948 F.3d 363, 370 (D.C. Cir. 

2020). That the NPS has issued interim guidance complying

with the district court’s decision certainly does not make the 

case moot because, as the NPS has stated, it “intends to update 

regulations addressing filming activities that are consistent 

with the outcome of [this litigation].” NPS, Filming and Still 

Photography Permits, 

https://www.nps.gov/aboutus/news/commercial-film-and-photopermits.htm (Aug. 26, 2021). See W. Virginia v. Env’t Prot.

Agency, 142 S. Ct. 2587, 2607 (2022). (“Voluntary cessation 

does not moot a case unless it is absolutely clear that the 

allegedly wrongful behavior could not reasonably be expected 

to recur” (cleaned up)).

A. The Applicability of Forum Analysis 

Filmmaking undoubtedly is protected by the First 

Amendment. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 

(2011) (“[T]he creation and dissemination of information are 

speech within the meaning of the First Amendment.”). This

uncontroverted fact, however, merely launches our inquiry, for 

“[n]othing in the Constitution requires the Government freely 

to grant access to all who wish to exercise their right to free 

speech on every type of Government property.” Cornelius v. 

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799 

(1985). Because “the Government, no less than a private 

owner of property, has power to preserve the property under its 

control for the use to which it is lawfully dedicated, the Court 

has adopted a forum analysis” to determine the legality of 
9

restrictions upon speech on Government property. Id. at 800

(cleaned up). 

For the purposes of this analysis, Government property is 

generally divided into three categories: traditional public 

forums, designated public forums, and nonpublic forums. 

A traditional public forum is property that has “time out of 

mind” been used to assemble and to communicate with others. 

Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 

45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). 

Examples include public streets and city parks. Id. 

Government regulation of speech on this type of property is

subject to the same heightened scrutiny as applies to regulation

of speech on property not controlled by the Government: strict

scrutiny if the regulation is content-based, intermediate

scrutiny if it is content-neutral. See id. 

A designated public forum is “government property that

has not traditionally been regarded as a public forum,” but the 

Government has “intentionally opened up for that purpose.” 

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 

(2009). Examples include meeting facilities maintained by 

state universities and municipal theaters. Perry, 460 U.S. at 

45. So long as the government chooses to “retain the open

character” of the property, “it is bound by the same standards

as apply in a traditional public forum.” Id. at 46.

A nonpublic forum is government property that “is not by

tradition or designation a forum for public communication,”

id.; examples are museums and offices. There, the

Government has far more leeway to regulate speech: a

restriction of speech in a nonpublic forum is “examined only

for reasonableness,” United States v. Kokinda, 497 U.S. 720,

726 (1990). This means the restriction is constitutional if it is
10

reasonable given “the purpose of the forum and all the

surrounding circumstances,” Cornelius, 473 U.S. at 809, and is

viewpoint neutral, id. at 806. 

A hybrid case is the limited public forum, in which the

Government has “create[d] a forum that is limited to use by

certain groups or dedicated solely to the discussion of certain

subjects.” Summum, 555 U.S. at 470. Those limitations, like

restrictions in a nonpublic forum, need only be reasonable and

viewpoint neutral. Good News Club v. Milford Central Sch.,

533 U.S. 98, 106 (2001). 

The district court’s conclusion that the permit-and-fee

requirements for filming on NPS property are unconstitutional

is based upon its assumption that the speech-protective

standards of a public forum apply to filmmaking just as they

apply to other speech. This assumption flows from a simple,

initially attractive syllogism:

• Major premise: All the details of forum

analysis, including the speech-protective rules

of a public forum, apply to any speech the First

Amendment protects.

• Minor premise: The First Amendment protects

filmmaking.

• Conclusion: All the details of forum analysis,

including the speech-protective rules of a public

forum, apply to filmmaking. 

This syllogism also undergirds Price’s argument in defense of

the district court’s decision. 
11

The United States argues that the syllogism proceeds from 

a flawed major premise because not every activity the First 

Amendment protects as speech benefits from the strict, speechprotective rules of a public forum. Because a filmmaker does

not seek to communicate with others at the location in which 

he or she films, the filmmaker does not use the location as a 

“forum.” Therefore, the United States argues, the district 

court’s forum analysis was misplaced. Price counters that the 

district judge had it right: There is no basis to distinguish 

between filmmaking and other activities protected by the First 

Amendment. 

We think the Government is correct. Based upon the 

historical underpinnings of forum analysis, the evolution of 

this analytical framework, and the cases in which the Supreme 

Court has applied it, we are convinced that it would be a 

category error to apply the speech-protective rules of a public 

forum to regulation of an activity that involves merely a 

noncommunicative step in the production of speech. Although 

that activity warrants solicitude under the First Amendment, 

that solicitude does not come from the speech-protective rules 

of a public forum. In reaching this conclusion we are buoyed 

by the Supreme Court’s warning against extending the public 

forum doctrine “in a mechanical way” to contexts that 

meaningfully differ from those in which the doctrine has 

traditionally been applied. Arkansas Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 672-73 (1998).

We begin by examining the history of forum analysis and 

how the Supreme Court has described and justified it. Modern 

forum analysis came to fruition in the 1983 case of Perry 

Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 

but its seed had been planted decades earlier. Although the 

earlier cases do not present a fully developed forum doctrine, 

they are widely cited for their descriptions of the types of 
12

government-controlled property that are subject to special rules

under the First Amendment. In Hague v. CIO, for instance, the 

Court had stated: 

Wherever the title of streets and parks may rest, 

they have immemorially been held in trust for 

the use of the public and, time out of mind, have 

been used for purposes of assembly, 

communicating thoughts between citizens, and 

discussing public questions. Such use of the 

streets and public places has, from ancient 

times, been a part of the privileges, immunities, 

rights, and liberties of citizens. 

307 U.S. 496, 515 (1939) (emphasis added). Similarly, in 

Schneider v. State of New Jersey, Town of Irvington, the Court 

had said that “the streets are natural and proper places for the 

dissemination of information and opinion.” 308 U.S. 147, 163 

(1939) (emphasis added). Soon thereafter, in Cox v. State of 

New Hampshire, the Court summarized the relevant case law 

as follows: 

As regulation of the use of the streets for 

parades and processions is a traditional exercise 

of control by local government, the question in 

a particular case is whether that control is 

exerted so as not to deny or unwarrantedly 

abridge the right of assembly and the 

opportunities for the communication of thought 

and the discussion of public questions 

immemorially associated with resort to public 

places.

312 U.S. 569, 574 (1941) (emphasis added). 
13

In the 1970s, the Court began using the term “public 

forum” to denote government-controlled property on which the 

Government would have to tread far more lightly in regulating 

speech. See Southeastern Promotions, Ltd. v. Conrad, 420 

U.S. 546, 555 (1975) (describing municipal theaters as “public 

forums designed for and dedicated to expressive activities”);

Greer v. Spock, 424 U.S. 828, 838 (1976) (declaring that “the 

business of a military installation” is “to train soldiers, not to 

provide a public forum”).

Perry was the culmination of this doctrinal evolution. 

There, the Court delineated the contours of forum analysis as 

we know it. It quoted the above passage from Hague and relied 

upon other proto-forum-analysis cases to announce that “[i]n 

places which by long tradition or by government fiat have been 

devoted to assembly and debate, the rights of the state to limit 

expressive activity are sharply circumscribed.” 460 U.S. at 45

(emphasis added). 

Two related commonalities run through the cases from 

Hague to Perry: the types of activities associated with public 

forums and the proffered justification for affording special 

protection to those activitiesin a public forum. As for the types 

of activities, the cases are concerned with assembly, the 

exchange of ideas to and among citizens, the discussion of 

public issues, the dissemination of information and opinion, 

and debate — all of which are communicative activities. It 

should come as no surprise, therefore, that the Court in Perry 

described the rule for a traditional public forum as follows: “In 

these quintessential public forums, the government may not 

prohibit all communicative activity.” Id. (emphasis added). 

The emphasis on communicative activities makes perfect 

sense considering the second commonality in the foundational 

cases: basing the justification for heightened protection of 
14

communicative activities in traditional public forums on their 

having “immemorially been held in trust” for that activity, and 

on participation in that activity being a privilege the public has 

enjoyed “time out of mind.” Hague, 307 U.S. at 515. As 

explained by the most eloquent Professor Harry Kalven, Jr., 

this longstanding use of public forums provides the public with 

an “easement” on this type of property. The Concept of the 

Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 

(1965). It follows, as the Supreme Court has demonstrated,

that to determine whether the highly speech-protective rules of 

a public forum apply to a given property, the question for a

court is whether there is “a traditional right of access . . . 

comparable to that recognized for public streets and parks.” 

Members of City Council of City of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 814 (1984).

Unsurprisingly, every single Supreme Court case from 

Perry onward in which the application of forum analysis was 

at issue involved communicative activity. See, e.g., Perry, 460 

U.S. at 37 (interschool mail system); Taxpayers for Vincent, 

466 U.S. at 789 (lampposts used to hang signs); Cornelius, 473 

U.S. at 801) (access to government-created charity drive 

conducted in federal workplaces during working hours); 

Forbes, 523 U.S. at 666 (1998) (debate among political 

candidates broadcast on public television stations). This 

buttresses our conclusion that forum analysis applies only to 

communicative activities, not to activities that, even if 

generally protected by the First Amendment, are not 

communicative. 

Though protected as speech under the First Amendment, 

filmmaking, like typing a manuscript, is not itself a

communicative activity; it is merely a step in the creation of 

speech that will be communicated at some other time, usually

in some other location. Creation of speech is not the type of 
15

activity for which streets and parks have been used “time out 

of mind,” and therefore it cannot be said that they have 

“immemorially been held in trust” for such activity. There is 

no historical right of access to government property in order to 

create speech. 

Price argues our distinction between communicative 

activity and filmmaking contradicts the consensus of the 

courts of appeals: “Every circuit court to address the issue,” he 

says, “has held that the First Amendment protects the right to 

make audio and/or video recordings in public places.” 

The cases Price cites do not establish a general right to 

create recordings in public places. Save for one, those cases 

deal with the filming of a public official (usually a police 

officer) performing public duties on public property. See 

Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st 

Cir. 2020); Fields v. City of Phila., 862 F.3d 353, 355-56 (3d 

Cir. 2017); Turner v. Driver, 848 F.3d 678, 687-88 (5th Cir. 

2017); Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014); 

Alvarez, 679 F.3d at 595-97; Glik v. Cunniffe, 655 F.3d 78, 82-

83 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 

1333 (11th Cir. 2000). 

Filming a public official performing public duties on 

public property implicates unique first amendment interests. 

“Gathering information about government officials in a form 

that can readily be disseminated to others serves a cardinal First 

Amendment interest in protecting and promoting ‘the free 

discussion of governmental affairs.’” Glik, 655 F.3d at 82 

(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). It 

should come as no surprise, therefore, that these cases do not 

speak of a sweeping right to record in public, but of a narrower 

right “to gather information about what public officials do on 

public property.” Smith, 212 F.3d at 1333. 
16

We understand these cases as standing for the proposition 

that it is unreasonable to issue a blanket prohibition against the 

recording of a public official performing public duties on 

public property, so long as the recording does not interfere with 

the performance of the official’s duties. “Such peaceful 

recording of [the performance of a public duty] in a public 

space . . . is not reasonably subject to limitation.” Glik, 655 

F.3d at 84. This helps explain why these cases make no effort 

to determine whether the location of the recording is a public 

forum: Because prohibiting the recording of a public official

performing a public duty on public property is unreasonable, 

the specific nature of the public property is irrelevant.

Of the cases cited by Price, the only one that reaches

beyond the recording of a public official on public property is 

Ness v. City of Bloomington, 11 F.4th 914 (8th Cir. 2021). The 

court in that case concluded that a city ordinance banning the 

video recording of a child without the consent of the child’s 

guardian was unconstitutional as applied to a person who 

wished to record alleged violations of a permit issued to a youth 

center by the city. Id. at 918. As the court noted, however, the 

plaintiff’s video recordings were “of matters of public 

controversy” for dissemination to the public, which the court 

likened to “news gathering.” Id. at 923. Even that case, 

therefore, does not suggest a general right to record on public 

property.*

* The same goes for John K. MacIver Institute for Public Policy, 

Inc. v. Evers, 994 F.3d 602 (7th Cir. 2021), invoked by our dissenting 

colleague as support for his contrary position. That case, which does 

not even deal with filming, holds merely that forum analysis applies 

to “gathering information for news dissemination.” Id. at 612 

(emphasis added). 
17

Although the Ness court proceeded to apply traditional 

forum analysis in concluding that the ordinance was 

unconstitutional, id., its analysis does not resolve the key 

question here. After noting that “video recording is speech,” 

the court merely assumed forum analysis should apply; it did 

not grapple with the differences between communicative 

activity and video recordings. Id. As we have explained, 

extending traditional forum analysis in this manner ignores the 

analytical underpinnings of forum analysis.

*

 

B. Reasonableness

Price asserts that the regulation of filmmaking is subject to 

heightened scrutiny when the filming takes place on NPS land 

considered a traditional public forum or on land designated by 

the NPS as a free speech area. But the key takeaway from the 

preceding analysis is that, with respect to noncommunicative

first amendment activity such as filmmaking, the highlyprotective rules of a traditional public forum are inapplicable. 

As a result, filmmaking is subject to the same degree of 

regulation in a traditional public forum as it would be in a 

nonpublic forum. The same surely applies to filmmaking in 

the designated free speech areas the district judge identified as 

other NPS land in which heightened scrutiny ought to apply. 

514 F. Supp. 3d at 187. Those areas are limited public forums, 

which the Government has opened specifically for 

“demonstrations” and the sale or distribution of messagebearing items, see 36 C.F.R. § 2.52-2.53, but not for 

noncommunicative first amendment activity such as 

* Our conclusion about the applicability of forum analysis to 

filmmaking is based upon the difference between communicative 

activity and steps in the creation of speech. Forum analysis may well 

apply to live streaming, which is communicative activity, albeit to 

people who are not necessarily located in the forum in which the 

streaming is conducted.
18

filmmaking. For that type of activity, these areas are 

effectively nonpublic forums. 

The upshot is that filmmaking on all NPS land is subject 

to the same “reasonableness” standard that applies to 

restrictions on first amendment activity in a nonpublic forum: 

The “restriction must not discriminate against speech on the 

basis of viewpoint, and the restriction must be reasonable in 

light of the purpose served by the forum,” Good News Club, 

533 U.S. at 106-07 (cleaned up). 

It follows that Boardley (upon which the district judge and 

Price rely) has nothing to do with this case. That case dealt 

with the distribution of written materials, 615 F.3d at 512, a 

communicative activity to which the heightened speechprotective rules of a public forum undoubtedly apply. Here, by 

contrast, we must assess the permit-and-fee requirements under 

the aforementioned “reasonableness” standard.

As several of our sister circuits have recognized, 

“reasonableness” requires something more than the toothless 

“rational basis” test used to review the typical exercise of a 

state’s police power. See NAACP v. City of Phila., 834 F.3d 

435, 443-44 (3d Cir. 2016); Sammartano v. First Judicial Dist.

Court, 303 F.3d 959, 966–67 (9th Cir. 2002); Multimedia Pub.

Co. of S.C. v. Greenville–Spartanburg Airport Dist., 991 F.2d 

154, 159 (4th Cir. 1993). At the same time, “[r]easonableness 

is a relatively low bar,” NAACP, 834 F.3d at 443, so regulations 

subject to this standard are subject “must survive only a much 

more limited review” than are regulations subject to heightened 

(intermediate or strict) scrutiny, Int’l Soc. for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992). 

Moreover, a reasonable regulation “need not be the most 

reasonable or the only reasonable limitation,” Cornelius, 473 

U.S. at 808. Indeed, “there is no requirement . . . ‘that the 
19

restriction be narrowly tailored’ to advance the government's 

interests.” Hodge v. Talkin, 799 F.3d 1145, 1164–65 (D.C. Cir. 

2015) (quoting Cornelius, 473 U.S. at 809). Crucially, the 

“reasonableness” of any restriction “must be assessed in the 

light of the purpose of the forum and all the surrounding 

circumstances. ” Cornelius, 473 U.S. at 806, 809. And, finally, 

“reasonableness” may be established by evidence in the record 

or even by a commonsense inference. See NAACP, 834 F.3d 

at 443-44 (summarizing relevant Supreme Court precedent).

No party argues (nor could they) that the permit-and-fee 

requirements discriminate based upon viewpoint. Therefore, 

we need assess only whether those requirements are 

reasonable. 

The Government argues the permit-and-fee regime

furthers two significant interests: (a) raising revenue to 

maintain and improve the parks; and (b) ensuring that filming 

does not harm federal lands or otherwise interfere with park 

visitors’ enjoyment of them. Price counters the revenueraising justification, saying the district judge correctly 

concluded it runs afoul of the well-settled rule that the 

Government may not “impose a charge for the enjoyment of a 

right granted by the federal constitution,” Murdock v. 

Pennsylvania, 319 U.S. 105, 113 (1943).

Price further argues the permit requirement is 

unconstitutional because, insofar as it is justified as protecting 

park land, the distinction in the regulation between commercial 

and noncommercial filmmaking bears no relationship to that

purported interest. 
20

1. The fee requirement 

We have no difficulty rejecting Price’s contention that the 

location fee violates the Murdock rule. The fee is not an 

impermissible charge for engaging in constitutionally 

protected activity; it is reasonable extraction of a rent by the 

owner of a property. As the Eleventh Circuit has noted, 

“reasonableness, for purposes of forum analysis, includes a 

commercial component.” Atlanta J. & Const. v. City of Atlanta

Dep’t of Aviation, 322 F.3d 1298, 1309 (11th Cir. 2003). With 

respect to a nonpublic forum, “reasonable regulations may 

include profit-conscious fees for access for expressive conduct, 

in a manner similar to fees that would be charged if the forum 

was owned by a private party (i.e., a fee for an auditorium for 

a dance recital, or a fee for displaying advertisements in a 

newspaper).” Id. That is why a government agency may 

extract rent from a vendor that sells newspapers in a

government-controlled airport or subway station. See id.; 

Jacobson v. City of Rapid City, 128 F.3d 660, 664 n.2 (8th Cir. 

1997); Gannett Satellite Info. Network, Inc. v. Metropolitan 

Transp. Auth., 745 F.2d 767, 775 (2d Cir. 1984) (“If Gannett 

were to place its newsracks on privately owned business 

property it undoubtedly would have to pay rent to the owner of 

the property. The fact that the business property in question is 

owned by the MTA should confer no special benefit on 

Gannett.”).

Charging for commercial use of park land is no different. 

The Government has not singled out speech to charge a fee; as 

detailed above, it charges a fee for all types of commercial 

activity on land controlled by the NPS, which is consistent with 

the Congress’s declaration “that it is the policy of the United 

States that the United States receive fair market value of the 

use of the public lands and their resources.” 43 U.S.C. 
21

§ 1701(a)(9). The fee requirement merely puts a commercial 

filmmaker on the same footing as any other person who uses 

park land for a commercial purpose, such as a concessionaire. 

Just as the Government may charge the concessionaire a rental 

fee, so too may it charge the commercial filmmaker a usage 

fee. 

We do not suggest that any fee would be constitutionally 

permissible or that any as-applied challenge to the fee charged 

by the NPS would fail. We simply reject the district judge’s 

categorical conclusion that “any attempt to justify § 100905’s 

permitting regime on the basis of a governmental need to raise 

revenue is a dead end,” 514 F. Supp. 3d at 190, and conclude 

that on the present record, there is no basis to say the fee 

requirement is unreasonable. Which brings us to the permit 

requirement.

2. The permit requirement 

Protecting and properly managing park lands are 

undoubtedly significant governmental interests, see Boardley, 

615 F.3d at 519. With regard to whether a small film crew with 

a small amount of equipment implicatesthose interests, we find 

illuminating the words of the NPS when it first adopted the 

regulation: 

While it could be assumed that crews of three 

people or fewer have less potential for causing 

resource damage or interfering with the public's 

use or enjoyment of the site, the agencies 

governed by this regulation manage and protect 

some of the nation's most treasured and 

valuable natural and cultural resources. In 

many circumstances it is important for land 

managers to know the specific time and location 
22

of certain activities so permit terms and 

conditions may be used to mitigate the 

possibility of resource damage or impact to 

visitors. For example, park units may have 

limited space, fragile resources, or [may] 

experience high visitation during a specific time 

period. Refuges may need to protect nesting 

areas of threatened or endangered species 

during certain times of the year.

Commercial Filming and Similar Projects and Still 

Photography Activities, 78 Fed. Reg. 52,087, 52,090 (Aug. 22, 

2013). 

Price gives us no basis for second guessing the factual 

underpinnings of this rationale for requiring filmmakers to get 

a permit. What remains is his question about underinclusiveness, for which he points to the disparate treatment of 

a small commercial production, for which a permit is required, 

and a larger non-commercial production, which is exempt from 

the permit requirement. Although Price raised the question to 

argue the permit requirement fails heightened scrutiny, his 

point is relevant, as far as it goes, even under the much less 

demanding standard of “reasonableness.”

 

An argument that a restriction on speech is underinclusive 

faces an uphill battle, even when the restriction is subject to 

heightened scrutiny. Indeed, “it is surprising at first glance that 

a regulation of speech should ever be found impermissibly 

underinclusive,” ISKCON of Potomac, Inc. v. Kennedy, 61 

F.3d 949, 956 (D.C. Cir. 1995) (cleaned up), for, as the 

Supreme Court reminds us, “the First Amendment imposes not 

an ‘underinclusiveness’ limitation but a ‘content 

discrimination’ limitation upon a State's prohibition of 

proscribable speech.” R.A.V. v. City of St. Paul, Minn., 505 
23

U.S. 377, 387 (1992). Thus, “an underinclusive . . . regulation 

that is otherwise valid must be found to be constitutional so 

long as it does not favor one side of an issue and its rationale is 

not undermined by its exemptions.” ISKCON, 61 F.3d 957. 

There can be no serious argument that the permit 

requirement favors one side of any issue. Nor does the 

distinction between commercial and non-commercial filming 

undermine the NPS’s rationale for requiring a permit. As the 

Government points out, it stands to reason that “an expansive 

operation that generated no income would be rare compared to 

the common occurrence of large-scale commercial filming.” It 

follows that a commercial film production is likely to involve

more activities that are disruptive to park operations and are 

more likely to cause damage to park resources than does a noncommercial film production. Therefore, the distinction 

between commercial and non-commercial filming seems 

reasonably related to the Government’s interests. While it may 

be that “these purposes would be more effectively and not so 

clumsily achieved” by drawing different distinctions, Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 297 (1984), 

that possibility does not make the line NPS has drawn 

unreasonable. Even if the question were a closer one, we 

would not have “the competence to judge how much protection 

of park lands is wise and how that level of conservation is to 

be attained.” Id. at 299. 

As with the fee requirement, we have no occasion to 

foreclose the possibility of a successful as-applied challenge to 

the permit requirement. We hold only that, on the record 

before us, we cannot conclude the permit requirement is 

facially unreasonable.*

* Because we dispose of the case on this ground, we have no 

occasion to comment on (1) the propriety of the district court’s 
24

3. A brief rejoinder regarding the “news-gathering” 

exception

Price argues that the special treatment the NPS regulations 

afford to “news-gathering activities” amounts to an 

impermissible content-based distinction. He further argues 

that the distinction in the regulations between “news-gathering 

activities” (exempt from the permit-and-fee requirements) and 

filming a “documentary” (subject to the permit-and-fee 

requirements, 43 C.F.R. §§ 5.4, 5.12, is untenable and 

arbitrary.

Even if these arguments raised a real problem with a part 

of the regulations, they would not be grounds for facially 

invalidating the entire permit-and-fee regulation, much less the 

statute. In any event, the arguments are without merit. The 

favorable treatment of news-gathering is but an example of the 

unremarkable practice of the Congress “sometimes grant[ing]

the press special privileges and immunities.” Associated Press

v. F.C.C., 452 F.2d 1290, 1298 (D.C. Cir. 1971); see also 

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 579 

(1977) (holding a state may privilege the press by exempting it 

from a right-of-publicity tort). Indeed, the exemption and the 

definition of “news-gathering activities” in the regulations are 

modeled on the Freedom of Information Act, which provides 

for a lower fee to be charged “a representative of the news 

media, 5 U.S.C. § 552(a)(4)(A)(i). Considering the centrality 

of the unimpeded functioning of the news media to the health 

issuing a nationwide injunction or (2) whether the district court’s 

overbreadth analysis, which pays little attention to proportionality, is 

consistent with our precedent and that of the Supreme Court, see 

Hicks, 539 U.S. at 122; United States v. Williams, 553 U.S. 285, 292-

93 (2008); Ass’n of Priv. Sector Colleges & Universities v. Duncan, 

681 F.3d 427, 456–57 (D.C. Cir. 2012). 
25

of the Republic, an exception for “news-gathering” is certainly 

reasonable. 

The distinction between news-gathering and filming a 

documentary is just as benign as the exemption for newsgathering. To the extent that a documentary is not “news,” i.e., 

does not contain “information that is about current events or 

that would be of current interest to the public, gathered by 

news-media entities for dissemination to the public,” 43 C.F.R. 

§ 5.12, the distinction between filming a documentary and 

news-gathering is no different than the distinction between 

filming a drama and news-gathering. And to the extent the 

documentary is “news,” it surely is included in the exception 

for “news-gathering.”

III. Conclusion

To summarize, although filmmaking is protected by the 

First Amendment, the specific speech-protective rules of a 

public forum apply only to communicative activity. 

Consequently, regulations governing filmmaking on 

government-controlled property need only be “reasonable,” 

which the permit-and-fee requirements for commercial 

filmmaking on NPS land surely are. We therefore reverse the 

grant of Price’s motion for judgment on the pleadings and the 

denial of the defendants’ motion for judgment on the 

pleadings; vacate the declaratory judgment and the permanent 

injunction entered by the district court; and remand the case to 

that court with instructions to deny Price’s motion for 

judgment on the pleadings and to grant the defendants’ motion 

for judgment on the pleadings.

So ordered. 
KAREN LECRAFT HENDERSON, Circuit Judge, concurring: 

Although I am in complete agreement with Judge Ginsburg’s 

analysis and join it fully, I write separately only to emphasize 

the limited reach of the court’s holding. We conclude that the 

regulation of most non-communicative speech on government

property is subject to “reasonableness” review. Maj. Op. at 2, 

16–17. We need not—and do not—explain the full contours of 

what does and does not constitute “communicative speech.”

Under Supreme Court precedent, “communicative” speech is 

that which “inten[ds] to convey a particularized message” in a 

manner that allows others to understand it. Cf. Spence v. State

of Wash., 418 U.S. 405, 410–11 (1974); Clark v. Cmty. for 

Creative Non-Violence, 468 U.S. 288, 294 (1984) (“a message 

may be delivered by conduct that is intended to be 

communicative and that, in context, would reasonably be 

understood by the viewer to be communicative”). After today, 

we will still apply heightened scrutiny to a wide variety of 

speech. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. 

of Bos., 515 U.S. 557, 569 (1995) (finding “protected 

expression” as varied as the “painting of Jackson Pollock, 

music of Arnold Schöenberg, or Jabberwocky verse of Lewis 

Carroll”). Price’s filmmaking presents a paradigmatic example 

of non-communicative speech, which is itself an oxymoronic 

term. As Judge Ginsburg explains, it “is merely a step in the 

creation of speech.” Maj. Op. at 15 (emphasis added). Indeed,

Price will still need to edit and show his film before 

“communicating” what he “inten[ds] to convey.” Spence, 418 

U.S. at 410–11.
TATEL, Circuit Judge, dissenting: Federal law prohibits 

anyone from engaging in “commercial filming activities” in the 

national parks without first obtaining a permit and paying a fee.

54 U.S.C. § 100905(a)(1). Even though our court recently 

struck down similar restrictions on speech in national parks as 

“overbroad” and “antithetical to . . . core First Amendment

principle[s],” Boardley v. United States Department of 

Interior, 615 F.3d 508, 511 (D.C. Cir. 2010), the court today 

upholds these restrictions on grounds untethered from our 

court’s precedent and that of our sister circuits. Because the

permit and fee requirements penalize far more speech than 

necessary to advance the government’s asserted interests, they 

run afoul of the First Amendment.

I.

Under 54 U.S.C. § 100905, any person who wishes to 

conduct “commercial filming activities” in any national park

must obtain a permit and pay a fee. Designed solely to “provide 

a fair return to the United States,” the fee is “in addition” to the 

government’s recovery of all “costs incurred as a result of 

filming activities.” Id. § 100905(a)–(b). Although the statute 

contains no definition of “commercial filming,” the National 

Park Service’s (NPS) implementing regulations define the term

as any “recording of a moving image by a person, business, or 

other entity for a market audience with the intent of generating 

income.” 43 C.F.R. § 5.12. Commercial filming includes

“feature film, videography, television broadcast, [and] 

documentary,” id., but the term excludes “[n]ews-gathering 

activities.” Id. § 5.4.

Appellee Gordon Price, without first obtaining a permit or 

paying a fee, used a single camera and microphone to film in 

Virginia’s Colonial National Historical Park, intending to 

document rumored “hauntings and . . . unsolved murders” in 

the area. Compl. ¶¶ 37–39. Using his footage, Price produced 

Crawford Road, an independent film that premiered for an 
2

audience of 250 people and later acquired additional views on 

social media platforms. Id. ¶¶ 40–42. Several months later, 

“two NPS officers came to Price’s [workplace] and issued him 

a [criminal citation]” for filming without a permit. Id. ¶ 43. 

After the district court dismissed the charge (at the NPS’s 

request), Price brought a facial challenge to the 

constitutionality of section 100905 and its implementing 

regulations (collectively, “Permit Regime”). Price v. Barr, 514 

F. Supp. 3d 171, 179–80 (D.D.C. 2021). Acting on crossmotions for judgment on the pleadings, the district court ruled

that the Permit Regime violates the First Amendment. Id. at 

181. 

II.

To evaluate a facial challenge like Price’s, we must first 

determine whether the regulated activity is “speech” protected 

by the First Amendment. Boardley, 615 F.3d at 514 (internal 

quotation marks omitted). If so, we “identify the nature of the 

forum, because the extent to which the [g]overnment may limit 

access depends on whether the forum is public or nonpublic.” 

Id. (internal quotation marks omitted). Finally, we “assess 

whether the government’s justifications for restricting speech 

in the relevant forum satisfy the requisite standard.” Id. 

(internal quotation marks omitted). As relevant here, 

restrictions on speech in traditional public forums like the 

National Mall and designated public forums like “‘free speech 

areas’” within the national parks must, at minimum, be 

“narrowly tailored to serve a significant governmental interest” 

and “leave open ample alternatives for communication.” Id. at 

515–16 (describing the standard of scrutiny applicable to 

“[c]ontent-neutral restrictions on the time, place, or manner of 

speech in a public forum”).
3

In this case, how we proceed at each step of our analysis is 

controlled by Boardley v. United States Department of Interior, 

in which our court held facially unconstitutional NPS 

regulations making it “unlawful to engage in expressive 

activities within any . . . national parks unless a park official 

first issue[d] a permit.” Id. at 511. At the outset, we observed

that requiring a permit for “public expressions of views” 

unquestionably regulated “‘speech’ within the meaning of the 

First Amendment.” Id. at 512, 514. We then explained that the 

NPS regulations applied in “all . . . locations within the national 

parks,” including the “‘free speech areas’ . . . and other public 

forums within [the] . . . parks.” Id. at 515, 525. “[W]ithout 

deciding the forum status of every part of every national park,” 

id. at 521, we analyzed the NPS regulations as restrictions on 

speech in public forums, asking whether the permit 

requirement was narrowly tailored to achieve the government’s 

substantial interests in protecting national park resources and 

facilities from damage, minimizing interference with park 

activities, and preserving peace and tranquility within the 

parks. Id. at 519–24. We concluded that the regulations were 

not narrowly tailored because they required permits for large 

groups, small groups, and individuals even though requiring 

permits for “individuals and small groups promote[d] the 

government’s [interests] only marginally.” Id. at 522; see id. at 

524 (“Because the means chosen are . . . substantially broader 

than necessary to achieve the government’s interest[s], the NPS 

regulations are overbroad and not narrowly tailored.” (internal 

quotation marks and citation omitted)).

Like the expressive activities at issue in Boardley, the 

“commercial filming activities” regulated by the Permit 

Regime constitute speech. Although the government argued in 

the district court that filming receives no First Amendment 

protection, it wisely dropped that argument on appeal because

“[t]he act of making an . . . audiovisual recording is necessarily 
4

included within the First Amendment’s guarantee of speech . . . 

as a corollary of the right to disseminate the resulting 

recording.” ACLU of Illinois v. Alvarez, 679 F.3d 583, 595 (7th 

Cir. 2012). Indeed, the longstanding right to “expression by 

means of [audiovisual recording],” Joseph Burstyn, Inc. v. 

Wilson, 343 U.S. 495, 502 (1952), would have little meaning if 

“the act of creating that material” were unprotected. Fields v. 

City of Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017); see 

Animal Legal Defense Fund v. Wasden, 878 F.3d 1184, 1203 

(9th Cir. 2018) (To claim that “the act of creating an 

audiovisual recording is not speech protected by the First 

Amendment . . . is akin to saying that even though a book is 

protected by the First Amendment, the process of writing the 

book is not.”).

Moreover, like the permit requirement in Boardley, the 

Permit Regime at issue here targets speech in public forums.

As the government concedes, the Permit Regime applies to all 

NPS lands, including both “areas that [undoubtedly] meet the 

definition of traditional public forums” as well as “‘free speech 

areas’” that constitute “‘designated public forums.’” Boardley, 

615 F.3d at 515; see Appellant’s Br. 41 (Permit Regime 

“appl[ies] on all NPS lands, including . . . areas that constitute 

public forums.”); see also 54 U.S.C. § 100501 (Permit Regime 

applies to “any area of land and water administered by the 

Secretary [of the Interior], acting through the Director [of the

NPS], for park, monument, historic, parkway, recreational, or 

other purposes.”). Because “[t]hese areas are subject to the 

same permit [and fee] requirement[s] as all other locations 

within the national parks,” they “must be analyzed as 

restrictions on speech in public forums, and we need not . . . 

decide whether the same analysis would apply to the diverse 

range of other areas within the national parks.” Boardley, 615 

F.3d at 515–16.
5

The government argues that because many national parks 

include nonpublic forums, we must employ the lower standard 

of scrutiny applicable to content-neutral restrictions on speech 

outside public forums. In Boardley, however, we rejected this 

precise argument. We recognized that “many national parks 

include areas—even large areas, such as a vast wilderness 

preserve—which never have been dedicated to free expression 

and public assembly, would be clearly incompatible with such 

use, and would therefore be classified as nonpublic forums.” 

Id. at 515. We also observed that, as in this case, the record 

lacked evidentiary submissions to “determine the forum status 

of the hundreds of national parks governed by the NPS

regulations.” Id. Nevertheless, because the national parks’

public forums “[were] subject to the same permit requirement 

as all other locations within the . . . parks,” we analyzed the

NPS regulations as restrictions on speech in public forums 

“without deciding the forum status of all 391 national parks.” 

Id.

The government makes much of the fact that Price’s “own 

filming activity . . . occur[red] outside of any public forum.” 

Appellant’s Br. 59. But the location of Price’s filming activity 

is irrelevant because, as the Supreme Court has made clear, “in 

the area of freedom of expression[,] an overbroad regulation 

may be subject to facial review and invalidation, even though 

its application in the case under consideration may be 

constitutionally unobjectionable.” Forsyth County v. 

Nationalist Movement, 505 U.S. 123, 129 (1992).

At Boardley’s third step, we assess whether the NPS’s 

justifications for restricting speech in public forums satisfy the 

requisite standard of scrutiny. Boardley, 615 F.3d at 514. The 

government contends that the Permit Regime is content-neutral 

and, as such, need only be “‘narrowly tailored to serve a 

significant governmental interest’ and ‘leave open ample 
6

alternatives for communication.’” Appellant’s Br. 42 (quoting 

Boardley, 615 F.3d at 516). But even if the Permit Regime is 

content-neutral, it still fails to withstand scrutiny under 

Boardley’s precise reasoning.

Like the NPS regulations in that case, the Permit Regime 

burdens substantially more speech than necessary to achieve 

the government’s significant interests in protecting NPS 

resources and preventing interference with park visitors. See 

Boardley, 615 F.3d at 519 (finding significant governmental 

interests in protecting the national parks’ natural and cultural 

resources, protecting visitors, and avoiding interference with 

park activities). Because “commercial filming” includes any

videography intended to “generat[e] income,” 43 C.F.R.

§ 5.12, the Permit Regime applies to an extraordinarily broad 

group of people, ranging from large-scale filming operations, 

to small documentary film crews, to individuals who take short 

videos on their phones and later monetize this content on social 

media platforms. Even a park visitor who takes a five-minute 

video on her phone, planning to post it on YouTube and 

generate advertising revenue, must obtain a permit and pay a 

fee. Although large commercial filming projects may well

“involve equipment operators, filming subjects, and sustained 

operations” that burden park resources and disturb visitors, 

Appellant’s Br. 52, the government provides no reason to think 

that individuals and small groups “interfere meaningfully with 

[these] interests,” Boardley, 615 F.3d at 521 (internal quotation 

marks omitted); see id. at 522 (“[T]he government has failed to 

show that most individuals and small groups . . . pose such 

problems.”). “No doubt some individuals and small groups will 

cause these problems, but many will not; and the government 

has not explained why those [with the intent to generate 

income] are more likely to be problematic” than visitors who 

capture videos for personal use. Id. at 522. Thus, like the

regulations in Boardley that “applie[d] not only to large groups, 
7

but also to small groups and even lone individuals,” the Permit 

Regime “target[s] much more [speech] than necessary” to 

advance the government’s asserted interests in protecting NPS 

resources and park visitors. Id. at 520, 523.

The government argues that the Permit Regime, in 

addition to protecting NPS resources and park visitors from 

interference by filmmakers, advances a second significant 

governmental interest: “raising money.” Appellant’s Br. 42. 

But this interest is a nonstarter because the government may 

not “impose a charge for the enjoyment of a right granted by 

the federal constitution.” Murdock v. Pennsylvania, 319 U.S. 

105, 113 (1943). Although the government may impose 

licensing fees to “defray the expenses of policing” activities

guaranteed by the First Amendment, any such fees may not 

exceed the amount needed to cover administrative costs. Id. at 

113–14; see Cox v. State of New Hampshire, 312 U.S. 569, 577 

(1941) (permitting “the charge of a fee limited to” covering 

administrative costs). As the statute itself and the implementing 

regulations make clear, the Permit Regime’s fee is “in 

addition” to “any costs incurred as a result of filming activities 

or similar projects, including administrative and personnel 

costs.” 54 U.S.C. § 100905(b); see 43 C.F.R. § 5.8 (“[T]he 

location fee is in addition to any cost recovery.”). Thus, even 

were we to accept the government’s characterization of the 

Permit Regime as simply a means to generate revenue from 

filmmakers, it would still amount to an unconstitutional “tax”

on “activities guaranteed by the First Amendment.” Murdock, 

319 U.S. at 113.

The government insists that the Permit Regime’s fee does 

not impose a tax on constitutionally protected speech because 

it is part of a broader suite of NPS permit and fee requirements 

that “tax[] businesses generally.” Appellant’s Br. 45 (internal 

quotation marks omitted); see Majority Op. at 20 (noting that 
8

the government “charges a fee for all types of commercial 

activity on land controlled by the NPS”). But the challenged 

Permit Regime applies only to “commercial filming activities 

or similar projects.” 54 U.S.C. § 100905(a)(1). It is thus 

irrelevant that other statutes and regulations not implicated in 

this lawsuit apply to “commercial activity, in general.” 

Appellant’s Br. 45.

Next, the government argues that it may tax commercial 

filming in its “proprietary capacity,” citing the Eleventh 

Circuit’s statement in Atlanta Journal and Constitution v. 

Atlanta Department of Aviation that “‘when the [government] 

acts as a proprietor, reasonable regulations may include profitconscious fees for access for expressive conduct.’” Appellant’s 

Br. 48 (first quote); id. at 47 (second quote) (quoting Atlanta 

Journal, 322 F.3d 1298, 1309 (11th Cir. 2003)); see Majority 

Op. at 20–21. But as the Eleventh Circuit made clear, that rule 

applies only to fees charged for “distribution space in a nonpublic forum.” Atlanta Journal, 322 F.3d at 1312 (emphasis 

added). The Permit Regime levies fees in public forums. And 

unlike the rental fees at issue in the government’s cited cases,

the Permit Regime’s fee applies to individuals who neither 

reserve “fixed locations” on government property nor use such 

locations “to sell, exhibit or distribute materials.” Heffron v. 

International Society for Krishna Consciousness, Inc., 452 

U.S. 640, 643 (1981) (internal quotation marks omitted); see 

Jacobsen v. City of Rapid City, 128 F.3d 660, 664 n.2 (8th Cir. 

1997) (explaining that the government may charge “rent . . . as 

landlord” when a “newspaper leases public property for 

commercial use”). Accordingly, the government’s desire to tax 

commercial filming does not qualify as a “significant 

governmental interest.” Boardley, 615 F.3d at 516.

Because the Permit Regime’s restrictions on speech in 

public forums are not narrowly tailored to serve a significant 
9

governmental interest, they cannot withstand constitutional 

scrutiny.

III.

My colleagues opt to forego any application of heightened 

scrutiny to the government’s speech restrictions and instead

uphold the Permit Regime under a “‘reasonableness’ standard.” 

Majority Op. at 17–18. Specifically, they hold that filming is 

not the “type of activity” to which forum analysis applies and, 

thus, filming in public forums “is subject to the same 

‘reasonableness’ standard that applies to restrictions on [F]irst 

[A]mendment activity in . . . nonpublic forum[s].” Majority 

Op. at 18 (“For [filming], these areas are effectively nonpublic 

forums.”).

The application of forum analysis to expressive pursuits, 

however, is not reserved for particular types of First 

Amendment expression. Far from parsing different treatment 

for different types of expression, the Supreme Court focuses on 

“the character of the property at issue,” applying public forum 

doctrine to “property which . . . by tradition or designation [is] 

a forum for public communication” or “expressive 

activity.” Perry Education Ass’n v. Perry Local Educators’ 

Ass’n, 460 U.S. 37, 44–46 (1983) (emphasis added). Put 

another way, public forums are defined by “the objective 

characteristics of the property” or the designation of 

“propert[y] for expressive use.” Arkansas Education Television 

Commission v. Forbes, 523 U.S. 666, 677–78 (1998); see 

Members of City Council of Los Angeles v. Taxpayers for 

Vincent, 466 U.S. 789, 814 (1984) (analyzing the “‘character 

of the property at issue’”). If the property at issue qualifies as a 

public forum, it remains so regardless of which particular type 

of First Amendment expression occurs within the forum. See 

John K. MacIver Institute for Public Policy, Inc. v. Evers, 994 
10

F.3d 602, 611 (7th Cir. 2021) (explaining that forum analysis 

encompasses “various expressive pursuits”). 

True, as my colleagues observe, “earlier [Supreme Court] 

cases” describe public forums as “natural and proper places” 

for “assembly,” “discussion of public questions,” and 

“dissemination of information.” Majority Op. at 11–13

(internal quotation marks omitted). But this very same case law 

emphasizes the broad scope of protection afforded to speech in 

public forums, shielding against the abridgment of “the 

exercise of [one’s] liberty of expression in [such] places,” not 

merely the abridgement of certain types of expression. 

Schneider v. New Jersey, Town of Irvington, 308 U.S. 147, 163 

(1939); see also Perry, 460 U.S. at 45 (“[T]he rights of the state 

to limit expressive activity [in traditional public forums] are 

sharply circumscribed.” (emphasis added)). Professor Harry 

Kalven Jr.’s conception of public forums as First Amendment 

“easement[s]” reinforces this point. See Majority Op. at 14. The 

venerable right protected by this “easement” is not merely the 

right to communicate in public forums. It is the right “to use

the streets and parks for communication,” which a filmmaker 

does, regardless of where he later displays the film. Hague v. 

Committee for Industrial Organization, 307 U.S. 496, 515–16

(1939) (emphasis added). My colleagues reimagine the public 

forum to protect the stumping politician but not the silent 

photographer, to shield the shouting protester but not the notetaking reporter. These distinctions find no basis in First 

Amendment jurisprudence. It makes no more sense to exclude 

certain types of speech from public forums than it does to 

police which squirrels may enter a conservation easement.

More recently, several of our sister circuits have reiterated 

that forum analysis applies to all First Amendment expression, 

including filming. For example, the Seventh Circuit explained 

that forum analysis “addresses who has the right of access to 
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government property” to engage in “expressive pursuits—

whether that expressive pursuit is leafletting teachers, soliciting 

charitable donations, wearing political buttons at a polling 

place, or gathering information for news dissemination.”

Evers, 994 F.3d at 611–12 (emphasis added). The First, Fifth, 

and Eighth Circuits, moreover, have applied forum analysis to 

filming just as they would to any other form of speech. See Ness 

v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) 

(applying “the level of scrutiny applicable” to “traditional 

public fora” because the filming activities occurred in a “public 

park”); Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) 

(explaining that the government’s right to restrict filming was 

“‘sharply circumscribed’” because the filming occurred in “the 

oldest city park in the United States and the apotheosis of a 

public forum”); Turner v. Lieutenant Driver, 848 F.3d 678, 690

(5th Cir. 2017) (explaining that filming from a public sidewalk 

is “‘subject to reasonable time, place, and manner restrictions’” 

that must be “‘narrowly tailored to serve a significant 

governmental interest’”).

Although some of these cases arose in the context of 

recording public officials, Majority Op. at 15, the principles 

they state are much broader, describing “the First 

Amendment’s protection of the broader right to film” in public 

places. Turner, 848 F.3d at 689; see id. at 690 (“Like all speech, 

filming the police ‘may be subject to reasonable time, place, 

and manner restrictions.’”); Wasden, 878 F.3d at 1203–04 

(citing cases involving the filming of police officers as 

examples of the “‘First Amendment right to film matters of 

public interest’”); Western Watersheds Project v. Michael, 869 

F.3d 1189, 1196 (10th Cir. 2017) (“An individual who 

photographs animals . . . is creating speech in the same manner 

as an individual who records a police encounter.”). Yet the 

court cites not a single case that applies a “reasonableness”

standard of scrutiny to a government restriction on filming in 
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public places. By stripping filming of the protections afforded 

to expression in public forums, the court puts us in direct 

conflict with other circuits and leaves important expressive 

activities unprotected in places where the First Amendment’s 

guarantee of free speech should be at its apex. 

IV.

Under today’s sweeping holding, regulation of filming on 

government property is no longer subject to heightened 

scrutiny, even when the filming occurs in traditional public 

forums where “the rights of the [government] to limit 

expressive activity are sharply circumscribed” or designated 

public forums that the government “has opened for use by the 

public as a place for expressive activity.” Perry, 460 U.S. at 45; 

see Majority Op. at 2. Before standing outside Yosemite 

National Park’s visitor center using a cell phone to record 

commentary on our national parks that will air on an 

advertisement-supported YouTube channel, an individual must 

obtain a permit and pay a fee. Before filming a protest on the 

National Mall, tourists must obtain a permit and pay a fee if 

they have any inkling that they might later make money from

this footage on social media. And when the filming is 

spontaneous, these individuals will be criminally liable and 

face up to six months in prison even though they could not 

possibly have obtained a permit ahead of time. See 18 U.S.C. 

§ 1865; 36 C.F.R. §§ 1.3, 5.5(a). By stripping public forum 

protection from filming, my colleagues—for the very first 

time—disaggregate speech creation and dissemination, thus 

degrading First Amendment protection for filming, 

photography, and other activities essential to free expression in 

today’s world. See Wasden, 878 F.3d at 1203 (disaggregating 

video creation from dissemination “defies common sense”); 

Fields, 862 F.3d at 358 (similar); Alvarez, 679 F.3d at 595–96

(similar). I respectfully dissent.