October 6, 2014

If a tree falls in the forest, don't take a selfie with it

By Jonathan Wood Attorney

Last month, the Forest Service proposed a regulation that would require permits costing as much as $1500 to take photographs or film on Forest Service land. The public response has been overwhelmingly negative [I tried but couldn’t make the sentence long enough for all the criticism]. To put this simply enough that a Forest Service bureaucrat can understand it, the First Amendment doesn’t allow the government to forbid speech in public places, to regulate the content of that speech, to subject speech to an arbitrary preclearance process, or to condition a government benefit on waiving the right to free speech. Somehow the Forest Service managed to do all of this in a single proposal.

The proposal would require a permit for any “commercial” filming, which is broadly defined as any sound or video recording that could generate income and uses models, sets, or props. Say, for example, a nonprofit filmed a video in the forest that might generate donations [*cough* hint *cough*]:

This video would require Forest Service approval, even though the filming took place in a public place and had no adverse impact on the environment.

The regulation also prohibits unpermitted still photography if it uses models, sets, or props or causes any administrative inconvenience for the Forest Service (although it’s not clear why the permit regime isn’t itself an administrative inconvenience).

Forest Service Reg

Not only is the Forest Service prohibiting speech in public areas, it’s limiting permits to only those pictures or videos that would have a “primary objective of dissemination of information about the use and enjoyment of wilderness or its ecological, geological, or other features of scientific, educational, scenic, or historical value.” Or, as the Service’s Wilderness Director put it: “If you were engaged on reporting that was in support of wilderness characteristics, that would be permitted.” But if you’re criticizing the Forest Service and its policy of excluding humans from the natural environment, as PLF has, you wouldn’t be eligible.

But surely the Service wouldn’t enforce the regulation this way, right? Unfortunately, the Service has been enforcing this regulation (or something like it) for the last four years, and has abused this power to control speech.  For example, an Idaho Public Television crew approached the Service about filming a documentary on the anniversary of the Wilderness Act earlier this year. According to the general manager of the station:

“We had to convince them [the Forest Service] our stories would be in keeping with their interpretation of the values of wilderness,” said Ron Pisaneschi, general manager of Idaho Public Television. “We got the permits, but now we’re saying, ‘Enough.’ That’s not right. Our role is not to be a PR office for the Forest Service. It’s to cover stories how we see fit.”

Maybe the regulation was unintentionally drafted too broadly, and the Service didn’t mean to limit speech. But that’s still a serious problem in an agency with more than 30,000 employess, some of whom will abuse this unnecessarily broad power to control criticism.

If, as the Forest Service claims, its concern is negative impacts on the environment, there’s no reason for it to impose a costly and time-consuming permitting regime limiting speech. Rather, it should directly regulate impacts to the environment, and only require a permit for those activities with actual impacts. This proposal regulates speech qua speech on the off-chance that it might impact the environment.

Nor can the Forest Service defend its regulation on the grounds that it’s merely imposing a condition on a benefit—access to the nation’s forests. The unconstitutional conditions doctrine forbids the government from using its power to give or withhold goodies to coerce people into giving up their constitutional rights. Just last term, the Supreme Court declared it unconstitutional to require someone to endorse government policy as a condition of a benefit.

Because of the backlash, the Forest Service has slightly promised to back off of its unconstitutional proposal, but it hasn’t gone nearly far enough.

First, the Service has promised to respect the freedom of the press by exempting “breaking news” from permitting. Setting aside the problem of giving Forest Service bureaucrats discretion to define “breaking news,” this exemption fundamentally misunderstands the First Amendment. The First Amendment’s guaranty of freedom of the press doesn’t mean that “the press” has any greater right to speak than ordinary citizens. We all have the same broad right to speak free of government interference. The freedom of the press means that the government can’t limit who can have access to techologies to disseminate that speech whether that’s the printing press (which dominated at the time of the founding), or blogs, Facebook, and Twitter today. A government agency’s promise not to limit some privileged speakers’ freedom of speech isn’t consistent with the First Amendment.

Second, even if the Service limited its application of the regulation to true commercial activity, this wouldn’t cure the First Amendment problem. Most obviously, this is because the First Amendment doesn’t distinguish between commercial and noncommercial speech. Unfortunately, the courts have fallen asleep at the switch and allowed commercial speech to be regulated more easily since the 1940s. But that has always been a purely arbitrary and uninteligible doctrine. Or, as Ansel Adams’ grandson explained:

“Tough part is where do you draw the line on commercial activity,” Matthew Adams wrote. “It seems pretty clear when a camera crew goes in to film a commercial, but does a free-lance writer or landscape photographer need a permit? Would Henry David Thoreau or Ralph Waldo Emerson or Ansel Adams need a permit? Seems ludicrous.”

This profoundly unconstitutional law is open for comment until December 3, 2014.

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