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Case number 21-5073, Gordon M. Price versus Mary B. Garland in his official capacity as Attorney General of the United States of America et al.

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Mr. Buza for the balance.

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Mr. Horn revere for the appellee.

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Mr. Buza, good morning.

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Please proceed.

[00:00:18] Speaker 05:
Good morning and may it please the court, Joe Buse on behalf of the government.

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The statute governing commercial filming on National Park Service lands serves important government interests and is fully consistent with the First Amendment.

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That statute imposes the same kind of permit and fee requirements that apply to all commercial activity on NPS land.

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Commercial activity of all stripes is tightly controlled on park land to ensure that our national park system serves its core statutory purpose of preserving nature and wildlife unimpaired for future generations.

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That is a risk-averse mandate and one that NPS takes very seriously.

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For commercial activity to be allowed in our parks, it must not risk harm to the park's core purpose as parks and must give the

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This is First Amendment protected commercial activity.

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This is a First Amendment case.

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The argument is that this commercial activity is protected by the First Amendment.

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So how the government deals with other non-First Amendment protected commercial activities doesn't really relate to this case, does it?

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So first of all, we don't dispute that filming in general is an expressive activity, Your Honor, but it is important to recognize the broad suite of commercial regulations at issue here, because it shows the government really is targeting commercial conduct.

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It is not written a specific set of regulations, specifically targeting First Amendment protected activity.

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I don't think you need intent to prove a First Amendment case, do you?

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No, of course not, Your Honor, and we're not saying that.

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You know, the key point.

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Let me just ask you, let me just ask you a straightforward question about this to be sure I understand it.

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Okay.

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The location fee, there's two fees, right?

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A location fee and a cost recovery fee.

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Is that the way it works?

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Yes.

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And under the statute and the regulations, the location fee, is that what you get your permit for?

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Is that the way that works?

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That's what you pay for the permit.

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Commercial filmers have to pay both the location fee and cost recovery fee, if any, in order to obtain a permit and be able to commercially film on it.

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Gotcha.

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Okay.

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I understand it.

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And under the statute and the regs, the location fee is independent of the, it's in addition to the cost recovery fee, right?

[00:02:46] Speaker 05:
Correct, Your Honor.

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The cost recovery fee, it's through that that the Park Service recovers all the expenses for managing the filming, correct?

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Like guards, cleanup, whatever they have, right?

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That's correct.

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And the location fees on top of that, right?

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Yes, Your Honor.

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So why isn't it just a classic and unconstitutional fee on the exercise of a First Amendment right?

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I mean, why isn't it like Murdoch and these other cases?

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It's a fee for a First Amendment protected activity.

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The location fee has nothing to do with cost recovery.

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It's the cost recovery fee that does that.

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So why is it such a simple tax on a First Amendment activity?

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because it's a broad based assessment on all sides.

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Suppose I don't agree with you about that.

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Suppose I don't agree with you that because this is commercial activity, it's covered by all, it's no different from any of the other commercial regulations that control commercial activity.

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Suppose I think that this is different because it's First Amendment.

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Then isn't it a fee for the exercise of First Amendment activity?

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No, Your Honor, I think that's foreclosed by Leathers versus Medlock, where there similarly there was a broad-based assessment.

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There was a sales tax assessed on cable providers.

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The court recognized that was First Amendment activity.

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They were engaged in speech.

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But the court said there was no problem from assessing that tax on cable providers and, by the way, exempting newspapers.

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because there was nothing in that broad general scheme regulating commercial activity that in any way was disparate as to anyone's content or ideas or ability to communicate any messages.

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The Supreme Court said many times, Minneapolis Star, Leathers vs. Medlock, Arkansas Writers Project, that a broad-based tax like that is wholly constitutional.

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And this tax is no different than the taxes similarly assessed on all commercial activity of all stripes.

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hot dog vendors, people selling communicative t-shirts, people engaging in filming, people seeking to install rights of way or telecommunications equipment, which again also might implicate First Amendment values.

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All of these things are just of one piece of a broad-based commercial regulation.

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And for that reason, we say there's no First Amendment problem with the tax.

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Second and a part from that, Your Honor.

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I'm sorry?

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And what's your reaction to Price's argument that this interim guidance that was issued after the district court's decision undermines the government's claim that this fee is necessary to protect government's interest in protecting the parks?

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That is the low impact exemption.

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The interim guidance, Your Honor, is a second best fallback position that we issued in order to comply with the overbroad injunction here.

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If we were to reverse the district court, you would revoke the interim guidance.

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I would want to consult with my agency partners before giving a definitive answer.

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I suspect that might be the case because we would have an obligation to continue enforcing the statute as Congress wrote it in order to provide the best protection for our national treasures.

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Yeah, that's a really good point.

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I was going to ask you about that.

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Okay.

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I understand your answer.

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That's fine.

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Thank you.

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But the key point about the guidance, Your Honor, is that it really is a second best fallback position.

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And the statute at issue here, 10905 in Title 54, really is part of a broader series of regulations as the guidance itself shows.

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So 10751A is the core general power of the secretary to regulate the use and management of NPS lands.

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That is the source of authority to regulate all types of commercial activities.

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on NPS property.

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It was the source of authority that NPS used before 2000 to require permits for commercial film filming and before 1946 to require location fees.

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And no one doubts that what happened in 2000 was not a standalone regulation of speech, but Congress supervising the secretary's use of that authority

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and disagreeing with a certain discretionary decision not to collect location fees.

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It's not a standalone regulation of speech.

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It is Congress amending a specific application of a general power.

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Congress must have that authority to supervise and administrative agencies exercise of its discretion.

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And in doing so, I don't think anyone should conclude that Congress defangs its own power to do so by having, you know,

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written a statute that mentions filming specifically.

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The same effect could have been achieved by just writing a broad-based statute as Congress already did in 10751A.

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So Council, in your briefs, you argued also that the government is acting as a proprietor here.

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And is that independent of or anterior to the point you're making now?

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I think it's independent, your honor.

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So, you know, Congress created the national park system and directed NPS to maintain it in such a way as to maintain it unimpaired for all future generations.

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So Congress has given us a directive about how we're supposed to manage these lands.

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And that's a risk averse directive.

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We're entitled to guard against even small risks that can come from any commercial activity on the property.

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And that's a proprietary function.

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We're managing these parts in a certain way that has nothing to do with speech or anyone's ability to communicate publicly.

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And it's also important to recognize that what's happening here is not a use of government property as a forum to communicate on the forum.

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You know, Hague, Schneider, Perry, Cornelius, all of the canonical public forum cases talk about using the forum to communicate with other people on the forum.

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But that's not at all what's going on here.

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This is this case is really no different from if you know a film editing studio wanted to set up shop on the National Mall, no one would think that because the mall can be used for political demonstrations or any other type of gathering that somehow you know the major film studio would gain a leg up in the First Amendment analysis quite the contrary.

[00:09:23] Speaker 04:
Let's think about how good the fit is here.

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The distinction between commercial and non-commercial filming.

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Now, all the visitors to the park, with a few exceptions, have a video capability in their pocket.

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Sorry, my video keeps going out.

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I'm not sure why.

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It's almost impossible it seems to me to know whether filming activity is ultimately going to be part of a commercial exhibition or whether it's simply people making films for themselves.

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So it seems that the fit is less obvious now.

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I don't think that's quite right, Your Honor.

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And that's because of how we've designed the regulations.

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Here's the regulations focus on whether the person engaging in the commercial filming activity intends to earn income from a market audience at the moment of filming.

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And so we've included that intent requirement specifically to avoid a post hoc trap where it just so happens that if you engage in the filming activity at the time in good faith, not thinking you're going to earn money and then later on decide maybe you want to commercialize it, we're not going to go ahead and penalize you retroactively.

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that's a benefit to the filmer.

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But it's certainly true that anyone going on to NPS lands planning to make money from the film that they're making, you know, knows in advance that that's what they're going to do and they need to obtain the permit.

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And just to highlight, I'm sorry, I didn't want to cut you off.

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So a person who comes to the park with her iPhone and she has a

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So she has a YouTube channel, I think that's what they use, where she makes money through commercials.

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And she's filming to put this on her YouTube channel.

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And she's just standing there with her iPhone doing that.

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She has to get a permit, pay a location fee, right?

[00:11:28] Speaker 05:
That's correct, Your Honor.

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So how do you distinguish this case from Boardley?

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So in Boardley, Your Honor, the demonstrations in question could only take place in certain designated areas.

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They're enlarged talking about parking lots next to visitor centers.

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And the people were merely engaging in speech.

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And this court said, look, if you have a small group of people just talking in a small designated area next to a visitor center, that's indistinguishable from a normal park visit.

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And so, you know,

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Here you just have one person with an iPhone.

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I mean, what's the possible governmental interest?

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There's no costs.

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There's no impact on the park.

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In fact, if you just take, you have two people, they're both standing there with their iPhones.

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They're both filming exactly the same thing.

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One's gonna send the film to his mother and the other is gonna put it on their commercial YouTube channel.

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One needs a permit and the other doesn't.

[00:12:32] Speaker 05:
That's correct, your honor.

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And so just a couple of responses.

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First, NPS's statutory mandate is a very risk averse mandate, right?

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The agency is entitled to guard against even small risks to the unimpaired future use of generations.

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And so- What's the risk in the case, in the hypothetical I gave you, what's the risk?

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So it may be that in a specific case, there actually is ultimately no risk, but there's actually no way for the filmer to know that before they come to us and tell us what their activity is going to be.

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Doesn't the government have to be especially careful because this is a first amendment activity?

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And the government has been.

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It's just a classically overbroad statute.

[00:13:16] Speaker 01:
What about the copycat risk?

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I would think in this day and time, every time somebody puts something on YouTube, a million people

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do the same thing with a slight variation.

[00:13:29] Speaker 05:
That's exactly right, your honor.

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And there is a concern that one influencer goes into one sensitive area during wildflower season, and then suddenly you have a stampede of similar people doing similar things.

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And moreover, these filmers can't be expected.

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That could happen if she sends it to her mother.

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The mother could send it to the whole family, and you could have a stampede of cousins looking at the wildflowers.

[00:13:53] Speaker 05:
That's possible, Your Honor, but the commercial motivation here is something to take into account.

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I mean, people motivated by the intent to earn money can be expected to put boundaries in ways that's not true for normal visitors.

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Moreover, NPS, I'm sorry, I don't mean to be interrupting anybody.

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Moreover, NPS is used to the activities of normal visitors and they know where to position their resources to guard against the harms to the parks that can come from those visits.

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But a commercial filmer, we have no idea in general what they might be intending to do.

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And they have no idea whether their even small boots on the ground might have particular effects.

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As the secretary noted in 2013 in promulgating the regulations that issued here, although small groups can be expected to have far smaller consequences, that's not zero.

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And we need to know whether there's any particular risks.

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There's certain times and places that can have congestion where there's nesting issues

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or delicate wildlife or plants or flowers that the filmer would have no reason to know about, but we wouldn't, all we're saying with the permit requirement is, come tell us what you're gonna do.

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And by the way, small group.

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What you just said is equally true of the non-commercial filmer.

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They don't know what your constraints are, what they might be trampling on by accident.

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That doesn't make much of a distinction.

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It seems to me that once you have everybody armed with a camera, some with commercial intent and some not,

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that the damage to the park rationale is vastly undercut, but it leaves standing your return on the government's investment argument.

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They want to recover their costs, and one way to do that is to charge commercial users.

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That's exactly right.

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So one reason for the permit requirement that circumstance would be so that the public can turn obtain a fair return for the private exploitation of public resources but I do just want to just highlight that, you know, non commercial filming is not, you know,

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It doesn't go unregulated here as we pointed out in our briefings the other side does not dispute a personal filming incidental to a normal visits does not require a permit, but any sort of filming that could threaten park resources does require a permit.

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And so it actually is true that you know a personal

[00:16:21] Speaker 05:
visitor to a national park that engages in some kind of activity sort of outside the normal what you would expect from a normal park visit would actually have to obtain a permit if that filming could be expected in any way to risk harm to our national parks in the exact same way as a commercial filmer can risk harm when they're you know pursuing their you know their pursuit of income from the filming activity right so we're running over time here but i don't want to miss out on your your

[00:16:50] Speaker 04:
response to the, to the overbreath argument that I guess really we don't have the district court, well, I'll let you articulate it, but seeing to me your argument was that the district court really didn't delve at all into the degree of overbreath, if any, as an empirical matter.

[00:17:17] Speaker 05:
That's correct, Your Honor.

[00:17:18] Speaker 05:
And the district court had no basis for concluding that any hypothetical small group filming activity on a public forum, and here we're just talking about the National Mall, Lafayette Park, a handful of areas within the NPS system, that hypothetical small group commercial filming activities there are so substantial in relation to the vast swaths of NPS land on which everyone agrees we actually could apply these requirements lawfully.

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That's so substantial that the harsh medicine and last resort of facial overbreath doctrine is warranted.

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The Supreme Court made clear in Williams that you can't resort to facial overbreath to invalidate an act of Congress on its face and all of its applications on the mere basis of a hypothetical.

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And that's what we have here.

[00:18:09] Speaker 01:
All right.

[00:18:09] Speaker 01:
If there are no more questions, we'll give you a couple of minutes to reply.

[00:18:12] Speaker 01:
Mr. Corn revere.

[00:18:14] Speaker 02:
Thank you.

[00:18:19] Speaker 02:
Thank you, Your Honors, and may it please the court I represent Mr. Price.

[00:18:24] Speaker 02:
And let me start with the points that Judge Taylor was asking about at the outset, whether or not this really is similar to the other kinds of commercial restrictions that exist in national parks.

[00:18:41] Speaker 02:
And I think that is the incorrect premise from which the government's argument draws.

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The flawed premise is that this is material identical to other statutes and regulations that govern other commercial uses, but this is completely unlike things like cattle grazing, mining operations, permanent or semi permanent occupations of federal land.

[00:19:03] Speaker 02:
permits for commercial film and grant no right to occupy federal land.

[00:19:07] Speaker 02:
They simply allow people to do the same thing that other visitors to the park are free to do.

[00:19:12] Speaker 02:
And this is illustrated by the hypotheticals that Mr. Biusa uses.

[00:19:16] Speaker 02:
He referred to one in his argument, but there are several in his reply brief saying that this would be like setting up a sitcom writer's room on NPS property or building a film editing operation or operating a kiosk on the Yorktown National Battlefield.

[00:19:34] Speaker 02:
opposite of what we're suggesting.

[00:19:35] Speaker 02:
As a matter of fact, as we pointed out in page 26 of our brief, that in sharp contrast to the types of cases that the government that the government cites, Mr. Price was not occupying federal land to engage in commercial transactions

[00:19:51] Speaker 02:
such as selling blue rays of Crawford Road from kiosk or operating a drive-in theater at Yorktown National Battlefield.

[00:19:58] Speaker 02:
As I say, he was seeking access to federal land only to the same extent as non-commercial filmmakers and commercial film crews.

[00:20:05] Speaker 02:
There's simply no analog in the

[00:20:10] Speaker 02:
to this broader suite of regulations to which Mr. Buse refers, there aren't amateur cattle grazers on federal land or hobbyist hot dog vendors.

[00:20:19] Speaker 02:
The relevant distinction here is the semi-permanent or permanent occupation of federal land and not commercial motive.

[00:20:28] Speaker 03:
As a consequence, would you, would you, I'm sorry, go ahead.

[00:20:31] Speaker 02:
Well, I was just going to say if there's a broader suite of regulations that applies.

[00:20:35] Speaker 02:
It's really the organizing statute 101 that the government that the director of operations referred to in his memorandum on the interim rules.

[00:20:45] Speaker 02:
suggesting this is the regulation that governs use of the park generally that protects the resources rather than the commercial uses that Mr. Busa argues is the analog.

[00:21:00] Speaker 03:
The government says at one point in its reply brief that there are, quote, many circumstances that plaintiffs concede would present no constitutional difficulties.

[00:21:13] Speaker 03:
What are those?

[00:21:14] Speaker 02:
Well, that was a misstatement of our position.

[00:21:18] Speaker 02:
That was simply putting, I believe, language from Forsyth County versus nationalist movement, talking about how in over-breadth challenges, you're allowed to challenge rules or laws.

[00:21:31] Speaker 02:
where there are many applications that wouldn't present problems, there are some that do.

[00:21:35] Speaker 02:
We haven't conceded that there are applications of this law, written as it is, that present no difficulties.

[00:21:45] Speaker 02:
What we've argued is that the law is overly broad and imposes unconstitutional tax.

[00:21:50] Speaker 03:
Would you see any problem at all, if any First Amendment problem, if the government had simply applied the rules it has for the press to commercial filmmakers?

[00:22:04] Speaker 03:
Would that be okay?

[00:22:06] Speaker 02:
Yes, fine, because there's no permit requirement and there's no fee.

[00:22:13] Speaker 02:
And as a matter of fact, I think this is conceded by the government, not in its argument today, but in the application and the adoption of the iterate guidelines, when it suggests that there is no requirement, and risk averse or not,

[00:22:27] Speaker 02:
for low-impact filming, where you have five people or less with handheld equipment and a tripod, which describes the situation that initiated this case.

[00:22:39] Speaker 02:
And in the discussion, in the memorandum adopting the interim rules, the government explains the reason for this.

[00:22:46] Speaker 02:
It says, in recent years, NPS has seen an increase in low-impact filming activities within park areas.

[00:22:53] Speaker 02:
These activities involve minimal equipment and crews, such as individuals or small groups that film using smartphones or other handheld devices, in many cases with nothing more than a tripod for equipment.

[00:23:05] Speaker 02:
These types of productions are highly unlikely to need a permit because potential for impacts to resources and the visitor experience is no greater than the potential for impacts from visitors engaged in casual filming.

[00:23:18] Speaker 02:
This is true whether or not the footage is used for commercial purposes, such as posting footage online for profit.

[00:23:25] Speaker 02:
The commercial motivation adds absolutely nothing to the government's interest in First Amendment terms.

[00:23:32] Speaker 02:
The Supreme Court has made clear for decades, but having a commercial motivation does not diminish the level of First Amendment protection.

[00:23:41] Speaker 02:
And in terms of whether or not having a commercial motive affects the government's interest here, it is ironic that the government itself hosts photo contests.

[00:23:49] Speaker 02:
As the brief for the Amici National Press Photographers Association pointed out at page nine of its brief, that it hosts annually a share the experience photo contest.

[00:24:01] Speaker 02:
I visited the website for that contest over the weekend and discovered to my surprise that they offer a $10,000 first prize.

[00:24:08] Speaker 02:
for winning that contest.

[00:24:09] Speaker 02:
So if commercial motivation is what undermines the government's asserted interest, it is ironic indeed that the National Park Service would sponsor a contest seeking to attract people to the park.

[00:24:22] Speaker 04:
The commercial distinction established in the current law... You haven't addressed the government's argument based on simple return on their investment.

[00:24:36] Speaker 04:
if commercial activity, which strikes me as being quite independent of any damage claims and the damage claims.

[00:24:48] Speaker 04:
The argument based on damages I said to a friend on the other side is very much weakened, I think, by what you just read, for one thing.

[00:25:00] Speaker 04:
But that leaves standing this question of whether they can't just charge for use of their property and try to recover from those who are exploiting it for commercial gain.

[00:25:12] Speaker 02:
Right.

[00:25:12] Speaker 02:
I mean, I think the interim guidelines do take out the government's position entirely on the issue of the permit requirement and how that can be applied.

[00:25:23] Speaker 02:
As to the fee requirement, I think the line of cases beginning with Murdoch versus Pennsylvania responds to that entirely, that the First Amendment does not permit the government to charge a fee for the exercise of First Amendment rights.

[00:25:37] Speaker 04:
You can put a sales tax on newspaper sales, right, as long as it's a sales tax that's on everything.

[00:25:42] Speaker 02:
as long as it's a generally applicable tax.

[00:25:44] Speaker 02:
But this isn't a tax.

[00:25:45] Speaker 02:
This is a fee for exercising First Amendment rights on federal property.

[00:25:51] Speaker 02:
Also, it's a content-based fee.

[00:25:53] Speaker 04:
I mean, of course, it's levied as a fee.

[00:25:56] Speaker 04:
Why is that important in terms of the word tax versus fee so much?

[00:26:01] Speaker 02:
Well, because

[00:26:04] Speaker 02:
In the cases that the government cites, like Atlanta Constitution, Journal and Constitution versus the Atlanta Airport, we're talking about, again, occupation of a space from which to sell newspapers.

[00:26:18] Speaker 02:
And that is a rental fee, the government operating in its proprietary capacity.

[00:26:23] Speaker 02:
Here, the government is operating a park where it allows everyone to come in and spend time in the park.

[00:26:29] Speaker 02:
and it simply charges some users who exercise their First Amendment rights where it doesn't charge others.

[00:26:35] Speaker 02:
This isn't a single-in-kind fee that applies to everybody.

[00:26:39] Speaker 02:
Certain speakers are singled out and charge a particular fee.

[00:26:43] Speaker 04:
Now, Mr. Buse says that... No, it doesn't apply to everybody.

[00:26:47] Speaker 04:
It applies to a category called commercial activity.

[00:26:51] Speaker 02:
Well, that's why it applies to a category of people who are called commercial filmmakers, but not all commercial commercial activity.

[00:27:00] Speaker 02:
It's not just filmmakers.

[00:27:02] Speaker 02:
except it exempts news uses, which is also a category of commercial filmers, which the government recognizes.

[00:27:11] Speaker 04:
Right now, so what do you do with the points made by the government in their brief that there are innumerable statutes that exempt news functions for long established good and sufficient reason?

[00:27:26] Speaker 02:
There are certain benefits that have been authorized because the courts have recognized for a long time that there's a difference between a subsidy and a tax.

[00:27:37] Speaker 02:
Subsidizing a First Amendment activity is permitted, as in Reagan versus taxation with representation, or the government is not required to subsidize First Amendment activity in that case.

[00:27:49] Speaker 04:
So isn't the exception for news something like a subsidy for news gathering?

[00:27:57] Speaker 02:
Well, the difference is you can't go to jail or have to pay a fine if you, in the case of a subsidy.

[00:28:06] Speaker 02:
But here, if you don't go along with the government scheme that separates the speakers from others, you stand the risk of being imprisoned, as Mr. Price was facing down.

[00:28:17] Speaker 04:
But the statutes that the government cited are biologic exemptions, just like this one, where some burden is not made applicable to newsgathering.

[00:28:29] Speaker 02:
Right, but as Mr. Buse was discussing in his appearance a few minutes ago, he cited cases like Leathers v. Smedlock, which placed a tax sum on cable television and not on newspapers.

[00:28:45] Speaker 02:
He mentions Arkansas Writers Project, but that's the more applicable case where you have a different tax based on the type of magazine you're talking about.

[00:28:56] Speaker 02:
Some magazines

[00:28:56] Speaker 02:
being charged with acts and others not.

[00:28:58] Speaker 02:
The Supreme Court said that that was unconstitutional.

[00:29:02] Speaker 02:
Here you have irrational distinctions between current news and documentaries.

[00:29:08] Speaker 02:
Some are charged a fee, others not.

[00:29:11] Speaker 02:
and the regulations that were adopted pursuant to the law expressly show favoritism towards some kinds of speech.

[00:29:22] Speaker 02:
For example, in section 10905A2, it provides that the secretary may include other factors in determining the appropriate fee as the secretary considers necessary.

[00:29:34] Speaker 02:
Now, in the legislative history,

[00:29:36] Speaker 02:
It was explained that the bill authorizes the secretary to reduce fees.

[00:29:41] Speaker 02:
If the activity provides clear educational benefits for the department, and would exempt from any fees newsreels television news productions, and some commercial photography.

[00:29:51] Speaker 02:
guidelines that have been adopted pursuant to the statute and the legislative history have expressly favored some content over the others, as we explained at page 26 of our brief, that the superintendent has reduced or waived fees for projects that the National Park Service considers benefits NPS based on the amount of value that NPS receives.

[00:30:15] Speaker 02:
It says that they may receive significant benefits from production considered to be human interest or travel log segments filmed in parks.

[00:30:23] Speaker 02:
The benefits can include educational information on park programs, public awareness, and park specific programs or constituency building.

[00:30:31] Speaker 02:
So the level of discretion is built into the fee structure from the statute and through the regulations.

[00:30:39] Speaker 02:
And the Supreme Court in Forsyth County versus the Nationalist Movement said that that level of discretion in setting fees is sufficient to render the law unconstitutional on its face.

[00:30:52] Speaker 02:
And that's precisely what we have here.

[00:30:56] Speaker 02:
We have now, with the interim regulations, which eliminates both the fee requirement and the permit requirement flow in impact filming, recognition of how that doesn't really serve any government interest whatsoever.

[00:31:08] Speaker 03:
You're citing that for that proposition, right?

[00:31:12] Speaker 03:
I mean, this interim regulation doesn't really help you in your

[00:31:18] Speaker 03:
In your argument right because the statute still exists correct, we saw the statute.

[00:31:24] Speaker 03:
I mean the statute, I mean I guess you can make a pretty good argument that the interim regulations violate the statute don't you think statute doesn't authorize an exemption like this.

[00:31:35] Speaker 03:
No, no, statute does not authorize this.

[00:31:42] Speaker 03:
You're citing this for their statement that low impact productions are unlikely to need a permit because they're no more impactful than anything else like that.

[00:31:57] Speaker 02:
That's right.

[00:31:58] Speaker 03:
That's why you're citing it just for that sentence.

[00:32:00] Speaker 02:
Well, there's no.

[00:32:01] Speaker 02:
Yes, specifically to your question.

[00:32:04] Speaker 02:
But there is no greater impact based on the commercial versus non-commercial distinction.

[00:32:11] Speaker 02:
And in setting the fee in making the commercial versus non-commercial distinction, both the statute as it exists and the regulations adopted by the park service have discriminated between different speakers and its content-based distinction and the level of discretion.

[00:32:29] Speaker 02:
All make that unconstitutional.

[00:32:32] Speaker 04:
Also, the, the, in an overbreath case I'm not sure why we have one here since you can see it.

[00:32:41] Speaker 04:
That your argument applies to the entire park basically not sure why we don't have an as applied challenge but putting that aside or maybe you can address it in an overbreath case, the district court supposed to.

[00:32:55] Speaker 04:
determine whether there's a substantial over breath.

[00:32:59] Speaker 04:
And what do we know?

[00:32:59] Speaker 04:
What is there in the record to inform that judgment?

[00:33:04] Speaker 02:
Well, I think that the record here stands very much the way it did in Boardley versus the United States and then Boardley said that it wasn't necessary to look at all of national park property and all of public forums and then footnote three says that public forums that traditional public forums may exist in parks, but there isn't a record to to say.

[00:33:26] Speaker 02:
which ones exist.

[00:33:27] Speaker 02:
What we know from board we is that these regulations are overly broad because they do apply in both traditional and designated public forms wherever they may be in national parks and that makes it overbroad and it's also overbroad because of the filmers that it applies to even the low impact filmers that present no conceivable threat to public property.

[00:33:56] Speaker 04:
of commercial filming, which is the subject to this regulation, is essentially minuscule.

[00:34:07] Speaker 04:
Several times a year, somebody comes in to film commercially, and maybe they seek a permit, maybe they don't.

[00:34:14] Speaker 04:
If that's the case, and we don't seem to know, then we ought not to be invalidating the statute in its entirety.

[00:34:25] Speaker 02:
Well, I think this is addressed in the legislative history to public law 106-206, the 2000 enactment that enacted fees, where it talked about the magnitude of the applications that have been submitted over the years.

[00:34:38] Speaker 04:
Well, I won't give you my extended reasons for not caring about legislative history, but I don't.

[00:34:45] Speaker 04:
It wasn't enacted.

[00:34:47] Speaker 04:
It may have been in there as a compromise because they couldn't get it enacted.

[00:34:50] Speaker 04:
Who knows?

[00:34:51] Speaker 02:
But it does, just as a factual matter, address the extent of filming activities on public lands and indicates the reason for the enactment.

[00:35:02] Speaker 02:
And what it comes down to, essentially, is that Congress wanted a piece of the action.

[00:35:07] Speaker 02:
There's no indication that this was necessary to protect public lands, and we know from the interim regulations that it really isn't, and that it's an over-broadway of doing it.

[00:35:16] Speaker 02:
But they saw Hollywood productions like Dances with Bulls and said we should be able to collect on some of the proceeds.

[00:35:26] Speaker 02:
That legislative judgment... The way you've just stated, that seems eminently reasonable.

[00:35:32] Speaker 02:
Well, it may be for the larger productions, but for the now range of people who come to the park, many of them simply use handheld devices and some of whom may post on YouTube, then it's staggeringly overbroad because you're talking about thousands upon thousands of park visitors who impose no potential adverse impact on the land, who are nonetheless facing the possibility of prosecution and being fined simply because they pulled out their smartphone.

[00:36:02] Speaker 04:
They have a YouTube channel.

[00:36:04] Speaker 04:
But they're not doing anything.

[00:36:06] Speaker 04:
Those people, by and large, are not doing anything with a commercial intent, correct?

[00:36:11] Speaker 02:
They may or may not.

[00:36:13] Speaker 02:
And Mr. Pritzker.

[00:36:14] Speaker 04:
There are millions.

[00:36:15] Speaker 04:
I don't know how many millions of visitors to the parks.

[00:36:18] Speaker 04:
Acadia National Park, with which I'm familiar, has about three or four million visitors a year.

[00:36:22] Speaker 04:
And it's, I think, the smallest park.

[00:36:24] Speaker 04:
In any event, the percentage of people filming there for some commercial purposes is inevitably tiny.

[00:36:33] Speaker 02:
in which case the potential impact on the park doesn't justify putting people in jail.

[00:36:38] Speaker 03:
Isn't your point that this would be unconstitutional if there was just one person?

[00:36:45] Speaker 02:
Well, that's right.

[00:36:46] Speaker 02:
I mean, if the law imposes an unconstitutional burden on a person who is engaging in unconstitutional.

[00:36:54] Speaker 04:
But the Supreme Court cases always talk about a substantial overgrant, not one person.

[00:37:01] Speaker 02:
But the substantial over breadth here applies both in terms of the scope of regulations on all areas within the parks.

[00:37:10] Speaker 02:
And by the way, let me just say one thing about that.

[00:37:12] Speaker 02:
It isn't restricted to just public forum areas.

[00:37:16] Speaker 02:
Section 100905C talks about still photography.

[00:37:21] Speaker 02:
And it says people are free to take pictures wherever the public is allowed access in the parks.

[00:37:26] Speaker 02:
And they only requires permits if

[00:37:29] Speaker 02:
you know, there are going to be props or models being used.

[00:37:34] Speaker 02:
And that was a part of the law that was undisturbed.

[00:37:37] Speaker 02:
But it basically says that people have a right to take photographs wherever they go in the parks.

[00:37:42] Speaker 02:
It isn't just the public forum areas.

[00:37:44] Speaker 03:
Where does it say that?

[00:37:46] Speaker 02:
This is section 10905C, which basically says that, except as provided in paragraph two, the secretary shall not requirement or access fee for still photography in a system unit if the photography takes place where members of the public are generally allowed.

[00:38:07] Speaker 02:
Again, it's not focused on just public forum areas or designated public forum areas that says people simply have the ability to take photos for either commercial or non commercial purposes, whenever they are in places where people are allowed to go.

[00:38:24] Speaker 04:
This case is about filming, not about photographs.

[00:38:33] Speaker 02:
Well, yes, it is.

[00:38:34] Speaker 02:
And this provision C was expressly excluded by the district court, but it indicates that the interests that the government is talking about aren't affected by whether or not something is commercial or non-commercial.

[00:38:48] Speaker 02:
commercial still photography is permitted, commercial filming is not, and it's irrational, as discussed in the amicus brief of the National Press Photographers Association at page 22, where they say that the difference between a film and a still photography is irrelevant with today's equipment, where you simply flip a button.

[00:39:09] Speaker 02:
At one moment, you're violating the law.

[00:39:11] Speaker 02:
At the other moment, you're not.

[00:39:13] Speaker 02:
And yet the government is claiming that there's some vital interest that requires making people into federal criminals if they press one button but not another.

[00:39:22] Speaker 02:
The law is staggeringly over-broad in its reach in restricting what areas require a permit.

[00:39:30] Speaker 02:
And it imposes an unconstitutional tax in violation of longstanding Supreme Court precedent like Murdoch versus Pennsylvania.

[00:39:41] Speaker 01:
All right, if there are no more questions, then Mr. Abusev will give you two minutes.

[00:39:47] Speaker 05:
Thank you, Your Honor.

[00:39:47] Speaker 05:
I have several important points to make.

[00:39:49] Speaker 05:
First, there was a lot of focus on the interim guidance.

[00:39:52] Speaker 05:
And I want to make very clear that the language that my friend on the other side has focused on in that guidance where it says that, you know, that smaller low impact filming activities are unlikely to need a permit.

[00:40:05] Speaker 05:
I want to make very clear this is not NPS saying that there is no risk and that we don't need permits for small filming activities.

[00:40:13] Speaker 05:
This is all downstream of the

[00:40:14] Speaker 05:
price decision this entire memo from page one says that it's dealing with the price decision is trying to craft interim guidance that will comply with the price decision.

[00:40:24] Speaker 05:
And, you know, it is still the case that Congress has created a risk adverse, sorry.

[00:40:31] Speaker 05:
a risk minimizing regulatory framework here for NPS that NPS is entitled to at least require commercial filmers to come to us and say what they're going to do because they don't know that what they're going to do is going to have a big impact or not, depending on specific conditions and their specific proposed activities.

[00:40:48] Speaker 05:
And that's the written necessity for a permit requirement, even for small groups.

[00:40:53] Speaker 05:
My friend on the other side said that, you know, filming is actually different from other commercial activities we regulate.

[00:41:00] Speaker 05:
And that's just really not true.

[00:41:01] Speaker 05:
I mean, we regulate commercial tour operators who don't physically occupy the space for, they don't rent it in the same way, but they certainly use

[00:41:09] Speaker 05:
NPS land in the same way that a commercial filmer does ditto with a small time hot dog vendor carrying a sack of hot dogs rather than setting up a kiosk I mean all of these things are commercial activities were entitled to regulate has nothing to do with permanently occupying federal land or not.

[00:41:24] Speaker 05:
Finally, as for you know there's been a lot of discussion about small time filming activities and

[00:41:32] Speaker 05:
What's important to focus on here is that Mr. Price's filming activities involve four people, two observers, a tripod, a mic, and physically occupying federal land for an extended period of time.

[00:41:42] Speaker 05:
That's different in kind from a normal park visit.

[00:41:44] Speaker 05:
It is not incidental to most filming.

[00:41:47] Speaker 05:
And the hypothetical application to a single person commercially filming on a public forum is so far afield.

[00:41:55] Speaker 05:
It does not warrant the harsh medicine of facial over-breath here.

[00:41:59] Speaker 05:
Thank you, Your Honor.

[00:42:00] Speaker 04:
Yes, I'm sorry.

[00:42:01] Speaker 04:
You objected to the nationwide injunction.

[00:42:07] Speaker 04:
Yes, Your Honor.

[00:42:09] Speaker 04:
Yeah.

[00:42:10] Speaker 04:
But in a case like this, where the standing of the plaintiff is based upon the effect of the regulations on people other than the plaintiff himself, how can that possibly be limited to the relief that you were given as applied case?

[00:42:30] Speaker 05:
Because in every circumstance, the Article III power extends only to granting as much relief as is necessary to give full relief to the plaintiff, but not to non-parties.

[00:42:40] Speaker 04:
That's just a fundamental- You're saying that the over-breath doctrine of the Supreme Court, which is, of course, of its own making, it's not to be found in Article III, is unconstitutional.

[00:42:53] Speaker 05:
No, Your Honor, we're absolutely not saying that.

[00:42:54] Speaker 05:
We're saying that the overbred rule is a merits rule, just like all facial review is a rule for determining whether the plaintiff in their own case and controversy has prevailed on the merits.

[00:43:06] Speaker 05:
But no one thinks.

[00:43:08] Speaker 05:
I'm sorry, Your Honor.

[00:43:09] Speaker 03:
Can you cite one case?

[00:43:11] Speaker 03:
And you cite a bunch of cases here on the preliminary injunction thing, but none of them are First Amendment facial cases, facial challenges under the First Amendment.

[00:43:23] Speaker 03:
I don't know of any case that is held that when, if a statute is unconstitutional, the court limits its injunction to the plaintiff who brought the case.

[00:43:36] Speaker 03:
Do you know of a case like that?

[00:43:40] Speaker 05:
I'm sorry.

[00:43:41] Speaker 05:
I think I would have to flip it the other way around and say, I'm actually not aware of the case from this court.

[00:43:46] Speaker 03:
Why don't you start by answering my question?

[00:43:49] Speaker 05:
Oh, I'm sorry.

[00:43:50] Speaker 05:
I'm sorry.

[00:43:50] Speaker 05:
Just to be clear, I don't know.

[00:43:53] Speaker 03:
Do you know the case where the court invalidates a statute on First Amendment grounds and limits the relief to the plaintiff who brought the case?

[00:44:04] Speaker 03:
That's all.

[00:44:04] Speaker 03:
That's my question.

[00:44:06] Speaker 05:
I don't think I'm aware of a case from this court or the Supreme Court holding that after having addressed the issue as being teed up by the litigants, Your Honor.

[00:44:13] Speaker 05:
But to be clear, I'm actually not aware of a case.

[00:44:16] Speaker 05:
I realize I'm over time.

[00:44:17] Speaker 05:
Just one final point on this.

[00:44:19] Speaker 05:
I'm not aware of a case in which this court and the Supreme Court has held that because you prevail on a facial challenge, you therefore get a nationwide injunction protecting non-parties to the case.

[00:44:32] Speaker 03:
That's antithetical.

[00:44:36] Speaker 05:
You can, you can conclude that.

[00:44:39] Speaker 03:
Isn't that, isn't that, isn't that declaratory judge with the laws unconstitutional is the equivalent of an injunction.

[00:44:47] Speaker 05:
We have often treated a declaratory judgment as the equivalent of an injunction.

[00:44:51] Speaker 05:
That's correct, your honor, but all I think technically the declaratory judgment does is ensure that the specific litigant wouldn't have to litigate the merits of that issue again.

[00:45:00] Speaker 03:
I have no further questions.

[00:45:02] Speaker ?:
Okay.

[00:45:05] Speaker 01:
Thank you gentlemen.

[00:45:06] Speaker 01:
Your case is submitted and Madam Clerk if you'd call the next case.