AAN Argues for Right to Engage in Visual Newsgathering on Public Lands

Back in September, AAN joined a letter to the National Forest Service regarding proposed rules affecting commercial filmmaking and still photography on forest service lands. The proposals dealt with a requirement that those engaged in commercial filmmaking or still photography get a permit if they are using models, props, etc or would have an impact on the land. But there was an exception for “breaking news”. This became a mini-controversy inflamed mainly by people within journalism who didn’t realize that most of the proposed rules had been used in practice for several years and that this proposal was just going to formalize those rules and add two small additional requirements.

That letter did receive a positive response from the Chief of the National Forest Service, who indicated that he definitely did not want to impact First Amendment activities, including journalism. That led to a meeting between representatives of several media organizations (AAN was represented by Legal Counsel Kevin M. Goldberg) and Forest Service staff, as well as a renewed commitment on to file comments in the actual rulemaking proceeding.

The comments were filed on December 3. AAN and 14 other organizations made the following recommendations:

  • All references to “breaking news” (which provide exemptions from the permitting requirements) should be replaced by “journalism,” with that term defined as:

    • Journalism includes but is not limited to: breaking news, feature stories, explanatory reporting about resource issues on NFS lands, b-roll and stock photography, still and motion documentaries, long-form pieces and background stories. Journalism further includes but is not limited to: photography, filming, and recording for use in any medium of dissemination, whether it be print, visual, broadcast, cable, satellite, online, or other means of reproduction and transmission. However, this list is intended to be non-exclusive and those applying the definition of “news” should err on the side of inclusion and, therefore, consider an activity exempt from the permit requirement when at all possible.

  • There should be several changes to the definition of “commercial filmmaking” (which requires a permit) to ensure that the term is not invoked too often, which would result in a chilling effect on First Amendment protected activities. These recommended changes include:

    • Explicitly stating that “journalism” is not a commercial activity (which provides further reinforcement that a permit is not needed)

    • Redefining an “actor” for purposes of the definition of “commercial filmmaking” to ensure that journalists or others in documentary films are not considered actors and therefore, their use in a production is unlikely to trigger the need for a permit

    • Deleting from the list of criteria uses when a permit is or may be required anything that takes into account the content of the production (while leaving in criteria which judge whether there is an impact on the land)

Because similar permitting requirements exist in other agencies that oversee government lands, we hope to effect similar change elsewhere to protect the right to engage in visual newsgathering on public lands.