Cert. petition: Is filming in a public forum subject to less First Amendment protection than expressive activities? — First Amendment News 369

 Gordon Price is a music store owner and part-time independent filmmaker; he lives and works in Yorktown, Virginia. In 2018, Price and a colleague released an independent feature film about a York County stretch of road that has long been the subject of rumors of hauntings and the location of unsolved murders. The film is entitled “Crawford Road.” It premiered at the Boathouse Live Restaurant in Newport News, Virginia. About 250 people attended the premiere, which received press coverage. Later, it was presented at other venues in Hampton and Yorktown, Virginia. The film also received some local TV news attention.

Enter the police: In December 2018, two officers of the U.S. Park Service came to Price’s music store and issued a citation for failure to obtain a commercial filming permit pursuant to 36 C.F.R. § 5.5(a). Price asked the officers why his film was treated differently from numerous videos of paranormal activity from the same locations that appear on YouTube or the news interview he gave for WTKR, and was told the other activities were covered by the First Amendment, and the distinction turned on the commercial nature of his film.

Now the controversy has come before the Supreme Court. The case is Price v. Garland (oral arguments here). The procedural posture is set out in the cert. petition:

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

The issues raised in the case are:

1. Whether filmmaking is “communicative activity” protected by the First Amendment or merely “a noncommunicative step in the production of speech” subject to a diminished level of constitutional scrutiny?
2. Whether First Amendment protections in public forums can be diluted by disaggregating the constituent parts of expressive activities and applying diminished constitutional scrutiny to information gathering?
3. Whether requiring commercial filmmakers to obtain a permit and pay a fee to film on public lands without regard to their impact on public property violates the First Amendment?

Excerpts from cert. petition

The linchpin of the decision below was the assumption that different elements of the speech process can be separated for purposes of setting the level of First Amendment scrutiny. The majority characterized filming as “merely a non- communicative step in the production of speech,” that it said is “like typing a manuscript, [which] is not itself communicative activity.” The D.C. Circuit cited no decisions of this Court to support its assumption that First Amendment scrutiny can be avoided by targeting one stage of the speech process.

[ . . . ]

To claim that the act of creating speech can be separated from its expression “is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not.” And if each step of the speech process could be disaggregated and regulated under separate standards, “then wide swaths of protected speech would be subject to regulation by the government.”

[ . . . ]

The D.C. Circuit’s decision is deeply at odds with basic First Amendment principles and with the decisions of other circuits for another reason: It denies protection to expressive activities specifically in public fora—those areas that 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.”

Counsel for petitioner

• Counsel of Record for Petitioner: Robert Corn-Revere (with Patrick J. Curran, Jr. and Patricia J. Peña)

Amicus briefs

• National Press Photographers Association and 13 other Organizations in support of Petitioner (Mickey H. Osterreicher, Counsel of Record)
• The Foundation for Individual Rights and Expression in Support of Petitioner (Abigail E. Smith, Counsel of Record)
• Pacific Legal Foundation in Support of Petitioner (Glenn E. Roper, Counsel of Record)

Related:

• Note, “Price v. Garland,” Harvard Law Review (2023)
• “Case in Progress — The Man Who Was Criminally Cited for Filming in a Federal Park,” FAN 224 (Sept. 18, 2019)

SCOTUS denies review in right of access to identify potential juror names during voir dire

The case is Morgan v. Arizona. The two issues raised in the case are:

(1) Whether the qualified right of access to voir dire under the First Amendment, recognized in Press-Enterprise Co. v. Superior Court I, includes the right to hear potential juror names during voir dire; and (2) whether, if the qualified First Amendment right of access to voir dire recognized in Press-Enterprise I does not include the right to hear potential juror names during voir dire, the Arizona Supreme Court misapplied the logic prong of the test articulated in when it held that there is also no presumptive right to hear juror names during voir dire under that test.

Related

• Kimberly Strawbridge Robinson, “Supreme Court Denies Bid for Public to Access to Juror Names,” Bloomberg Law (Feb. 27)

Speaker McCarthy’s release of Jan. 6 tapes to Tucker Carlson

• Asawin Suesbsaeng and Adam Rawnsley, “McCarthy Gave Tucker the Jan. 6 Tapes. Trump Allies Are Threatening to Sue,” Rolling Stone (Feb. 28)

WHEN HOUSE SPEAKER Kevin McCarthy gave Fox News host Tucker Carlson, a leading Jan. 6 revisionist, exclusive access this month to a vast archive of unseen surveillance footage of the deadly Capitol riot, he — expectedly — pissed off the left. But the Republican lawmaker’s move didn’t just infuriate his liberal counterparts, who accused him and Fox of working to rewrite history and potentially even inviting new “security risks.”

McCarthy’s gift to Carlson immediately triggered a right-wing media feud, and drew the scorn of multiple high-profile Donald Trump allies. And it quickly led to McCarthy getting legally threatened by the former president’s favorite election-attacking pillow mogul who’s using a pair of extremely pro-Trump lawyers, one of whom sued the January 6th House committee.

[ . . . ]

On Monday, MyPillow CEO Mike Lindell — a close Trump associate who has been one of the largest financial backers of the election-denialism movement since late 2020 — told Rolling Stone he’s now working with two attorneys, Doug Wardlow and Pat McSweeney, to file a lawsuit against McCarthy as soon as within the “next few days.”

Related

• Michael Meyerson, “Giving Tucker Carlson Jan. 6 video violates the First Amendment,” Baltimore Sun (Feb. 28)

Plaintiff’s complaint in Dominion v. Fox defamation suit with unsealed deposition

• “Rupert Murdoch’s Deposition Unsealed in Dominion v. Fox Defamation Suit,” First Amendment Watch (Feb.27) (full text of 212-page complaint)

Related

• Eric Wemple, “Rupert Murdoch isn’t sinking the Fox News legal case. Here’s why,” Washington Post (Feb. 28)
• Zachary Leemnan, “Legal Expert on CNN Downplays Significance of Murdoch Testimony in Fox Defamation Case: ‘It’s Not a Smoking Gun’,” Mediaite (Feb. 28)
• Quin Hillyer, “First Amendment should protect Fox News from defamation lawsuit,” Washington Examiner (Feb. 28)
• “Hear what first amendment attorney thinks about lawsuit against Fox News,” CNN (Feb. 26) (interview with Floyd Abrams)

Portions of North Carolina ag-gag law ruled unconstitutional

• PETA v. North Carolina Farm Bureau Federation, Inc. (4^th Cir. 2023 / 2-1 vote)

We enjoin the Act insofar as it applies to bar protected newsgathering activities PETA wishes to conduct. But we leave for another day all other applications of the Act . . . [W]e decline to enjoin any potential applications of the Act outside the newsgathering context.

Authorities seek confidential sources of murdered investigative reporter

This controversy centers around the murder of a local columnist and investigative reporter, Jeff German. After having been the subject of German’s exposé, Clark County Public Administrator Robert Telles lost his bid for re-election. Telles lost his re-election bid in the Democratic primary after German published the results of an investigation into allegations that Telles created a hostile work environment and was involved in an inappropriate relationship with a staffer. Shortly afterward, German was stabbed to death outside his Las Vegas Valley home, presumably by the exposed public administrator (who has since been indicted for murder).

Importantly, Jeff German’s cell phone was seized during the investigation of his death. The present controversy centers around the confidential sources listed on German’s cell phone. The Las Vegas Review-Journal objects to the police securing such information since German’s confidential sources included whistle-blowers inside the police department.

• Editorial, “RJ Answers worsening Secrecy by Agencies,” Las Vegas Review-Journal (Feb. 26)

Now, a core press protection that allows journalists to overcome this lawlessness could be eviscerated by the courts. Authorities want access to information that could reveal the confidential sources of murdered Review-Journal investigative reporter Jeff German, legal maneuvering that’s making whistleblowers everywhere think twice before revealing the kind of information their bosses keep locked down.

Volokh on barring public schools from removing school library books based on their viewpoints

• Eugene Volokh, “Does the First Amendment Bar Public Schools from Does the First Amendment Bar Public Schools from Removing School Library Books Based on Their Viewpoints?” The Volokh Conspiracy (Feb. 27) 

I think a public school is entitled to decide which viewpoints to promote through its own library; school authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc. The process of selecting library books is part of the government's own judgment about what views it wishes to promote; and the ability to reconsider selection decisions (including in response to pressure from the public, which is to say from the ultimate governors of the public schools) should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they’re not unconstitutional.

An apology from the National Archives for restricting pro-life messages

• Dennis Hetzel, “National Archives apologizes for trying to restrict pro-life messages,” Associated Press (Feb. 28)

The National Archives Museum in Washington, D.C., has admitted that staff security officers were wrong when they told visitors wearing pro-life messaging on their clothes to cover up or leave the building last month, according to an article in The Catholic Telegraph.

Although administrators have reportedly signed a legal agreement to prevent such an incident from happening again and issued an apology, the controversy isn’t over. There still is a lawsuit pending claiming that the museum violated the visitors’ First and Fifth Amendment civil rights. It could be settled through mediation.

Forthcoming book on free speech in universities

• Amy T.Y. Lai, “In Defense of Free Speech in Universities: A Study of Three Jurisdictions,” University of Michigan Press (Sept. 26, 2023)

In this book, Amy Lai examines the current free speech crisis in Western universities. She studies the origin, history, and importance of freedom of speech in the university setting, and addresses the relevance and pitfalls of political correctness and microaggressions on campuses, where laws on harassment, discrimination, and hate speech are already in place, along with other concepts that have gained currency in the free speech debate, including deplatforming, trigger warning, and safe space.

Looking at numerous free speech disputes in the United Kingdom, the United States, and Canada, the book argues for the equal application of the free speech principle to all expressions to facilitate respectful debates. All in all, it affirms that the right to free expression is a natural right essential to the pursuit of truth, democratic governance, and self-development, and this right is nowhere more important than in the university.

Forthcoming scholarly article: Ringel and Reid on regulating facial recognition technology

• Evan Ringel and Amanda Reid, “Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges,” Communication Law and Policy (forthcoming 2023)

This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is two-fold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT.

The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) Agents of Use; (2) Limitations on Use; (3) Accountability of Use; (4) Evaluation of Use; and (5) Enforcement of Permitted Use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.

Related

• Ryan Mac and Kashmir Hill, “Clearview AI settles suit and agrees to limit sales of facial recognition database,” The New York Times (May 9, 2022)
• Clayton Kozinski, “Clearview AI and the First Amendment fight for facial recognition,” FAN 311 (Sept. 15, 2021)
• “Clearview face-recognition controversy continues — privacy v. free speech,” FAN 281 (Dec. 16, 2020)

Forthcoming scholarly article: Procaccini on ‘anti-critical race theory’ laws

• Francesca Procaccini, “(E)racing Speech in School,” Harvard Civil Rights-Civil Liberties Law Review (forthcoming 2023)

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.

Through a First Amendment analysis of ‘anti-critical race theory’ laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to overturn anti-critical race theory laws, but often will protect students’ right to receive the information these laws chill. The deeper insight of these conclusions is that they rest on the same, sound constitutional reasoning: that the First Amendment works to protect equal political participation in democratic self-governance, as part of the Constitution’s larger foundational goal of securing equal popular sovereignty.

The First Amendment implications of these speech-chilling laws thus illustrate that, in service of democratic governance, the free speech right (1) leaves substantial room for government regulation of speech to protect safe and effective public services, including public school education; (2) rejects paternalism in favor of fostering individual enlightenment and growth in service of effective democratic self-governance; and (3) is primarily designed to protect the free flow of information so that citizens make good choices in their social, political, and economic lives. In short, the analysis emphasizes that the First Amendment protects citizens’ right to receive information critical to fulfilling and benefitting from their role as citizens. Anti-CRT laws do not run afoul of this principle — and in some ways they actually advance it — when it comes to regulating teachers’ and parents’ speech. The laws do, however, hinder democratic governance as applied to students’ rights to receive information critical to their ability to engage as full citizens. 

New scholarly article: Purvis on First Amendment and justifications for limiting gender identity speech

• Dara E. Purvis, “Transgender Students and the First Amendment,” SSRN (Feb. 18)

Suppose that a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally consistent with the sex they were assigned at birth. The student’s parents protest, arguing that their child’s clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing the discussion of gender identity as lewd and obscene.

This Article is the first analysis to map out and counter both obscenity and material disruption as justifications to limit gender identity speech. Although not all clothing choices by students are symbolic speech, gender presentation is the type of intentional and cognizable message that is protected under the First Amendment.

A comprehensive examination of student speech cases demonstrates that current attempts to define gender identity as an inappropriately sexualized topic for children are inconsistent with existing law.

Finally, the Article illustrates for the first time how schools can create a heckler’s veto by teaching students that the speech of transgender students is abnormal. The Article proposes an analytical revision that takes the schools’ role into account, reconciles the conflict between the heckler’s veto doctrine and Tinker’s material disruption test, and strengthens the protection of all controversial student speech. 

YouTube: Talk of free speech from the Comedy Cellar

• “Comedy, Free Speech, and Why the Last 10 Years of American Life Have Been So Uniquely Stupid,” The Psychology Podcast (Feb. 2023)

In this live recording from The Comedy Cellar, Dr. Scott Barry Kaufman has a discussion with Jonathan Haidt, Greg Lukianoff, and Rikki Schlott about why so much in America seems to be so messed up: Things like Gen Z, universities, social media, American democracy, and our sense of humor, grace, and decency. How can we lighten up, toughen up, and get less stupid? 

View video

‘So to Speak’ podcast on future of New York Times v. Sullivan

View video

• Nico Perrino, “New York Times v. Sullivan and its future,” FIRE (Feb. 23)

The seminal 1964 Supreme Court decision in New York Times v. Sullivan limited the ability of public officials to silence their critics by successfully suing them for defamation. Sullivan made “American public officials more accountable, the American media more watchful, and the American people better informed,” said William Rehnquist, the late Chief Justice of the Supreme Court. But Sullivan is increasingly under attack from politicians, activists, and even sitting Justices of the Supreme Court. They believe the decision went too far, enabling the news media and others to defame others with little-to-no consequence.

On today’s show, we are joined by lawyers Floyd Abrams (Cahill Gordon & Reindel), JT Morris (FIRE), and Matthew Schafer (Fordham Law) to discuss New York Times v. Sullivan and its future.

Anti-censorship mobile billboard

• “FIRE targets censorship with mobile billboards at Georgetown University,” FIRE (Feb. 21)

More in the news

• Eugene Volokh, “‘Cops Ahead’ Sign Protected by First Amendment, at Least Given Specific Connecticut Statutory Scheme,” The Volokh Conspiracy (Feb. 28)
• Adebusola Abigail Bada, “ACLU: banning TikTok would ‘violate the First Amendment’,” Jurist (Feb. 28)
• Aldous J. Pennyfarthing, “Kimmel responds to Trump's attempt to gag him, and thanks to the First Amendment, we're all laughing,” Daily Kos (Feb. 28)
• Eugene Volokh, “ACLU of N.C., Freedom of the Press Foundation, and I Are Challenging Sealing of Documents Related to Gag Order,” The Volokh Conspiracy (Feb. 28)
• “Penguin To Publish ‘Classic’ Roald Dahl Books After Censorship Backlash,” The Onion (Feb. 27)
• Dennis Hetzel, “Whistleblowing prof wins termination suit against Ore. university,” Associated Press (Feb. 27)
• “Justices reject appeal from man arrested for spoofing police,” Associated Press (Feb. 23)
• Sophia Cope and Adam Schwartz, “Fourth Circuit: Individuals Have a First Amendment Right to Livestream Their Own Traffic Stops,” Electronic Frontier Foundation (Feb. 23)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
• United States v. Hansen (to be argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (to be argued April 19)

Pending petitions

• Vidal v. Elster
• Keister v. Bell
• O’Connor-Ratcliff v. Garnier
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries 

State action

• O’Connor-Ratcliff v. Garnier

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (argued Feb. 22) 

Section 230 immunity

• Gonzalez v. Google (argued Feb. 21)

Review denied

• Morgan v. Arizona
• Novak v. City of Parma
• Soto v. Texas
• Moore v. Texas
• Chen v. Texas
• Barton v. Texas
• Arkansas Times v. Waldrip
• My Pillow v. U.S. Dominion (news story)
• Kowall v. Benson
• Tofsrud v. Spokane Police Department
• Swanson v. Griffin County 

Previous FAN

FAN 368: “Floyd Abrams blasts proposed Florida law to roll back NYT v. Sullivan protections”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.