Well, sort of.
First Amendment advocates have expressed escalating concern in recent days over a U.S. Forest Service rule requiring permits for photographers in national forests. In particular what is at issue is a new proposed Forest Service regulation that attempts to clarify and make permanent an already existing permit requirement for certain photographers.
Many news reports, such as this one in the Washington Post, suggest that the requirement applies to all photography and filming—including mobile phone pictures and news-gathering—on all national forest land, and will impose a $1,500 fee per permit. By contrast, Forest Service Chief Tom Tidwell told the Associated Press that nothing in the regulation “infringe[s] in any way on First Amendment rights” and that permits will not be required for “any part of the news.” Earlier this week, service officials had said permits would be required for anything other than “breaking news.”
I’m not sure either the news reports or Chief Tidwell are getting it quite right. And, although the governing regulations and laws are far from a model of clarity, I think by any reading the proposed regulation still raises a number of important free speech issues, which I’ll get to once I parse what appears to be going on.
First, the permitting regulation has been on the books for about four years but some reports suggest it was unenforced, or at least selectively enforced. The recent proposal, released in early September, would tack on additional criteria to the current framework for deciding whether to issue a permit (which can be found in section 45.51b in this chapter of the Forest Service Handbook).
According to the handbook, permits are required for two types of activities. You need a permit for “commercial filming,” regardless of where it occurs. And you need a permit for “still photography” that requires props, sets, or models; could impose administrative costs on the Forest Service; or takes place at a location where the public is normally not allowed.
Commercial filming is defined broadly as any moving image or sound recording that could generate income. The only carve-out is for “breaking news,” which is defined as an “event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.” Still photography is defined circularly as any photography that takes place in a non-public part of the forest, uses props etc., or could impose administrative costs on the service.
From what I can tell, any still photography involving more than 30 people requires a permit costing $450 a day. Commercial filming involving more than 70 people costs $1,500 a day.
So, while the Forest Service isn’t requiring a $1,500 fee for any old tree picture, the framework they’ve set up certainly poses a host of First Amendment issues.
Just to start, the carve-out for “breaking news” means that any other newsgathering activity that would qualify as “commercial filming”—in other words, all “non-breaking” newsgathering that could generate income and involves audio-visual recording—is subject to the permit fee, even in places where the public is allowed. The concern here is twofold.
First, the rule as a whole unfairly singles out the press. If I’m on Forest Service land taking a cell phone video of, for instance, lax maintenance activity, I’m free to do so. A local news station taking the same video would likely be subject to the permitting requirement, assuming the lax maintenance isn’t “breaking.” That’s likely unconstitutional, not to mention bad policy. Second, the awfully vague definition of “breaking news” gives Forest Service officials the discretion to arbitrarily deny journalists permits, or fine them for not getting one, by claiming the story isn’t “breaking.”
There are even bigger problems, however. The rule the Forest Service proposed in early September—the one that really started this whole kerfuffle—sets out several new criteria by which the service should evaluate permit applications. The service “may” issue a permit for anything other than “noncommercial still photography” (that is, commercial still photography and all other audio-visual recording including non-breaking newsgathering) if the activity meets, among others, the following criteria:
- It has the “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.”
- And, it does not “advertise any product or service.”
This poses two, potentially severe, problems. First, the “primary objective” criterion is desperately vague and again could be used arbitrarily by administrators to block filming or photography that depicts the Forest Service—or any other government agency—poorly.
Second, the permit requirement for advertising would likely have serious unintended consequences. While I guess we might want to keep national forests free of rampaging Don Drapers, the criterion could also apply to, say, the Sierra Club filming an advertisement seeking members. Clearly the Sierra Club offers a “service”: protecting the pristine beauty of our national forests. If the permit requirement dissuades groups like the Sierra Club from engaging in constitutionally protected activity on public lands, which it very well may, it poses concerns of constitutional moment.
Additionally, and I’m not being silly here, I don’t think the rule would apply to Smokey the Bear. If this would allow “only you can stop forest fire” commercials sans permit, but chill private activity, it poses free speech concerns. Consider a rule that says government advertising promoting the Affordable Care Act is permissible in Lafayette Park in front of the White House, but private advertising opposed to the law is verboten absent a costly permit. Granted, in the Smokey example, you’re not imposing a fee on people supporting forest fires, but favoring government speech over private speech is a problem anywhere we find it.
Finally, it’s worth noting one foundational flaw in the regulation—it needlessly picks on photography. The goal of the regulation is clear and laudable: to prevent harm to national forests. Why not just write a rule that imposes rational limits on commercial activity in places where it could harm the forests, irrespective of the activity involved? As is becoming increasingly clear in the cases upholding a constitutional right to record police activity in public, photography has an inherently expressive quality that requires special caution. That it’s being singled out here is a problem.
In any event, the Forest Service will be accepting public comment on the proposed rule until December 3, 2014. We should all urge the Forest Service to fix this troubling proposal. You can do so here.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.