December 2022 - Parks & Recreation - 30

LAW REVIEW
purpose. " Examples include meeting
facilities maintained by state
universities and municipal theaters.
So long as the Government chooses
to " retain the open character "
of the property, " it is bound by the
same standards as apply in a traditional
public forum. "
On appeal, Price also had argued the NPS justification for the permit requirement was
unconstitutional because the distinction between commercial and noncommercial filmmaking
bore no relationship to the purported significant governmental interest in protecting parkland.
with and implement the Congress's
declaration " that " it is the policy of
the United States that the United
States receive fair market value of
the use of the public lands and their
resources. " 43 U.S.C. § 1701(a)(9).
Forum Analysis
While the federal appeals court
acknowledged, " Filmmaking undoubtedly
is protected by the First
Amendment, " the court further
noted: " nothing in the Constitution
requires the Government freely to
grant access to all who wish to exercise
their right to free speech on every
type of Government property. "
On the contrary, the appeals court
recognized: " the Government, no
less than a private owner of property,
has power to preserve the property
under its control for the use to
which it is lawfully dedicated. "
The appeals court, however, noted
federal courts would apply a
" forum analysis " to determine " the
legality of restrictions upon speech
Traditional Public Forum
A traditional public forum is property
that has " time out of mind "
been
used
to
assemble and to
communicate with others, including
public streets and city parks.
Government regulation of speech
on this type of property is subject
to heightened scrutiny; i.e., strict
scrutiny if the regulation is contentbased,
intermediate scrutiny if it is
content-neutral.
Designated Public Forum
A designated public forum is " government
property that has not traditionally
been regarded as a public
forum, " but the Government has
" intentionally opened up for that
30 Parks & Recreation | DECEMBER 2 0 22 | PARK S ANDRECRE AT ION . OR G
on Government property. " As described
by the appeals court, forum
analysis generally divides government
property into the following
three categories: traditional public
forums, designated public forums
and nonpublic forums.
Nonpublic Forum
A nonpublic forum is government
property that " is not by tradition or
designation a forum for public communication, "
e.g., museums and
offices. There, the Government has
far more leeway to regulate speech:
a restriction of speech in a nonpublic
forum is " examined only for reasonableness. "
This means the restriction
is constitutional if it is reasonable
given " the purpose of the forum and
all the surrounding circumstances. "
Noncommunicative Speech
Production
On appeal, the NPS had argued the
First Amendment did not provide
the same benefits of " the strict
speech-protective rules of a public
forum " to
every
speech-related
activity. In so doing, the NPS
contended a filmmaker does not
use the location as a " public forum "
because " a filmmaker does not seek
to communicate with others at the
location in which he or she films. " In
response, Price claimed the district
court had correctly found " no basis
to distinguish between filmmaking
and other activities protected by the
First Amendment. "
As characterized by the federal
appeals court, the district court
had held the NPS permit and fee
requirements for filming to be unconstitutional
based upon an assumption
that the speech protective
standards of a public forum ap
December 2022 - Parks & Recreation

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