December 2022 - Parks & Recreation - 31

plied equally to filmmaking along
with
other
forms of protected
speech. While acknowledging the
term " public forum " denotes " government-controlled
property
on
which
the Government would have
to tread far more lightly in regulating
speech, " the federal appeals
court held the " speech-protective
rules of a public forum " would not
necessarily apply to " regulation of
an activity that involves merely a
noncommunicative step in the production
of speech. "
According to the appeals court,
the protective speech rules for a
public forum have been applied by
the federal courts to public streets
and parks because these places
have been traditionally used " for
purposes of assembly, communicating
thoughts between citizens,
and discussing public questions. "
As a result, the federal appeals
court would limit the strict speech
protection rules in a public forum
to such activities that discuss and
communicate thoughts, not activities
which are not communicative.
In this particular instance, the
federal appeals court found " filmmaking,
like typing a manuscript,
is not itself a communicative activity. "
On the contrary, as characterized
by the court, filmmaking
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 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.
Accordingly, in the opinion of
the federal appeals court, the district
court had erred in finding First
Amendment speech protection in a
public forum provided " a general
right to record on public property "
for commercial filmmaking.
Reasonableness Standard
On appeal, Price had claimed the
NPS regulation of filmmaking was
subject to " heightened scrutiny " by
the federal courts, particularly " 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. " The federal
appeals court rejected this argument.
In this particular instance, the federal
appeals court held " the highlyprotective
rules of a traditional
public forum " for First Amendmentprotected
speech did not apply to
a noncommunicative activity, like
filmmaking on NPS land.
Instead, in the opinion of the
appeals
federal
court,
filmmaking
on all NPS land is " subject
to the same degree of regulation
in a traditional public forum as it
would be in a nonpublic forum " ;
i.e., a reasonableness standard for
judicial review, not heightened or
strict scrutiny.
this reasonableness standard: " 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. "
In reviewing the constitutionality
of the challenged NPS permit-andfee
requirements under this less
strict
" reasonableness "
standard,
the federal appeals court would,
therefore, apply the following
" much more limited
than
are regulations
subject
review
to
heightened (intermediate or strict)
scrutiny " :
[A] reasonable regulation need
not be the most reasonable or the
only reasonable limitation.
Indeed,
there is no requirement [like
that under the heightened or strict
scrutiny standard of judicial review]
that the restriction be narrowly
tailored to advance the government's
interests. Crucially, the
" reasonableness " of any restriction
must be assessed in the light
of the purpose of the forum and
all the surrounding circumstances.
And, finally, " reasonableness "
may be established by evidence in
the record or even by a commonsense
inference.
The sole constitutional issue
before the federal appeals
court was whether the
challenged NPS permit-and-fee
requirements were reasonable.
Specifically, under
In this particular case, Price had
not claimed the NPS permit-and-fee
requirements discriminated based
upon viewpoint. Accordingly, the
sole constitutional issue before the
federal appeals court was whether
the challenged NPS permit-and-fee
requirements were reasonable.
On appeal, the NPS had argued
permit-and-fee
the
requirements
reasonably furthered the following
" 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.
Park Fee to Raise Revenue
On appeal, Price claimed the disPARK
S ANDRECRE AT ION . OR G | DECEMBER 2 0 22 | Parks & Recreation
31

December 2022 - Parks & Recreation

Table of Contents for the Digital Edition of December 2022 - Parks & Recreation

December 2022 - Parks & Recreation - Intro
December 2022 - Parks & Recreation - Cover1
December 2022 - Parks & Recreation - Cover2
December 2022 - Parks & Recreation - 1
December 2022 - Parks & Recreation - 2
December 2022 - Parks & Recreation - 3
December 2022 - Parks & Recreation - 4
December 2022 - Parks & Recreation - 5
December 2022 - Parks & Recreation - 6
December 2022 - Parks & Recreation - 7
December 2022 - Parks & Recreation - 8
December 2022 - Parks & Recreation - 9
December 2022 - Parks & Recreation - 10
December 2022 - Parks & Recreation - 11
December 2022 - Parks & Recreation - 12
December 2022 - Parks & Recreation - 13
December 2022 - Parks & Recreation - 14
December 2022 - Parks & Recreation - 15
December 2022 - Parks & Recreation - 16
December 2022 - Parks & Recreation - 17
December 2022 - Parks & Recreation - 18
December 2022 - Parks & Recreation - 19
December 2022 - Parks & Recreation - 20
December 2022 - Parks & Recreation - 21
December 2022 - Parks & Recreation - 22
December 2022 - Parks & Recreation - 23
December 2022 - Parks & Recreation - 24
December 2022 - Parks & Recreation - 25
December 2022 - Parks & Recreation - 26
December 2022 - Parks & Recreation - 27
December 2022 - Parks & Recreation - 28
December 2022 - Parks & Recreation - 29
December 2022 - Parks & Recreation - 30
December 2022 - Parks & Recreation - 31
December 2022 - Parks & Recreation - 32
December 2022 - Parks & Recreation - 33
December 2022 - Parks & Recreation - 34
December 2022 - Parks & Recreation - 35
December 2022 - Parks & Recreation - 36
December 2022 - Parks & Recreation - 37
December 2022 - Parks & Recreation - 38
December 2022 - Parks & Recreation - 39
December 2022 - Parks & Recreation - 40
December 2022 - Parks & Recreation - 41
December 2022 - Parks & Recreation - 42
December 2022 - Parks & Recreation - 43
December 2022 - Parks & Recreation - 44
December 2022 - Parks & Recreation - 45
December 2022 - Parks & Recreation - 46
December 2022 - Parks & Recreation - 47
December 2022 - Parks & Recreation - 48
December 2022 - Parks & Recreation - 49
December 2022 - Parks & Recreation - 50
December 2022 - Parks & Recreation - 51
December 2022 - Parks & Recreation - 52
December 2022 - Parks & Recreation - 53
December 2022 - Parks & Recreation - 54
December 2022 - Parks & Recreation - 55
December 2022 - Parks & Recreation - 56
December 2022 - Parks & Recreation - Cover3
December 2022 - Parks & Recreation - Cover4
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/february-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/january-2022
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2021
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