Filmmakers Sue to End “Unconstitutional” Permitting Rules to Shoot in National Parks

Logo text

Two filmmakers are suing to overturn government guidelines requiring a permit to film in national parks.

In a lawsuit filed Wednesday in Wyoming federal court, Alexander Rienzie and Connor Burkesmith challenge the constitutionality of federal permit and fee requirements on First Amendment grounds. They accuse National Park Services of censoring speech by requiring advance permission to film commercial content.

In a statement, Burkesmith stressed that “independent filmmakers don’t have the resources of the big production companies.” He added, “It’s a gut punch every time we throw down hundreds of dollars, only to be denied permits for reasons that are vague, arbitrary and unfair. As someone who needs to film outdoor sports where they happen, it’s a threat to my livelihood.”

The permitting scheme dates back to 2000, when lawmakers passed a law regulating commercial filming on federal lands motivated in part by major studios shooting in national parks. Fees are intended to provide a “fair return” to the government based on the duration of the production, size of film crew, and the amount and type of equipment involved.

This isn’t the first time a lawsuit has been filed alleging it’s unconstitutional to charge fees for shoots in national parks. In 2019, indie director Gordon Price sued the government after he was issued a citation for filming without a permit in public areas of the Yorktown Battlefield in Colonial National Historical Park in Virginia. A federal appeals court held in that case that filmmaking in a national park is not covered under the First Amendment, reversing his win at the district court level.

Like that dispute, central to this lawsuit is whether the commercial nature of a project qualifies as a content-based restriction that violates free speech protections.

In August, Rienzie and Burkesmith were denied a permit to film an attempt to break the record for the fastest time to ascend a mountain in Grand Teton National Park. They filmed anyway from publicly accessible areas of the park using small handheld cameras and minimal equipment but haven’t fully commercialized the content due to National Park Services threatening criminal charges.

The lawsuit points to “arbitrary distinctions” in the permitting regime requiring permission to film video expected to be commercialized but not photography or content recorded under “news-gathering activities.” It claims that the framework encourages overly discretionary decision-making by park officials to reject applications for allegedly unpredictable reasons.

The regulations “do not serve any legitimate governmental interest in protecting national park resources,” states the complaint. “A tourist recording video in a national park with a hand-held camera or cell phone is not required to obtain a permit, but he may become subject to the law if he later posts the video on YouTube, which pays some users for popular content.”

Under the law, permits are not required for news-gathering purposes or still photography in places where members of the public are generally allowed unless certain equipment not ordinarily present in national parks are used. According to the complaint, there’s no limitations restricting park officials’ discretion in determining what activities qualify as news-gathering or who qualifies as a member of the media.

If a tourist, reporter and documentary filmmaker each filmed the same vista in a national park using the same equipment, the lawsuit says, only the filmmaker would be required to obtain a permit and pay a fee if the purpose was found to be commercial and not news-gathering.

“In implementing the rules, park officials have imposed permit requirements and denied permits based solely on the content or message of the work created,” the complaint states.

The lawsuit brings claims for violations of the First and Fifth Amendments. It seeks a court order that permit and fee requirements are unconstitutional and that filming in national parks is protected activity.

“The national parks belong to the American public,” said Bob Corn-Revere, a lawyer at the Foundation for Individual Rights and Expression representing the trade group. “If you have a right to be there, you have a right to film there. The federal government can’t tax Americans to exercise their constitutional rights.”

In a statement, National Press Photographers Association President Carey Wagner said the NPS has “never fully respected the First Amendment rights of photographers.” The trade group is also a plaintiff in the lawsuit.

National Park Service didn’t respond to a request for comment.