Forest Service proposal sparks 1st Amendment firestorm

E&E News
By Phil Taylor
September 24, 2014

A Forest Service policy requiring reporters to pay for a permit -- and tailor their message -- in order to shoot photos or video in a congressionally designated wilderness area has riled the Fourth Estate, Democrats from forested states and even some wilderness advocates.

The agency proposed on Sept. 4 to make permanent a long-standing interim policy that sets guidelines for whether the service approves permits for commercial filming and still photography, including newsgathering, in wilderness areas.

In response to the criticism, the agency announced this morning that it would extend the comment period on the directive a month to Dec. 3 and would hold public meetings in the coming weeks to hear from the public, including journalists and wilderness advocates.

The service said the proposed directive merely finalizes current policy and "is a good faith effort to ensure the fullest protection of America's wild places."

But that's done little to tamp down the controversy.

Wilderness areas -- of which the Forest Service manages about 36 million acres -- are by law supposed to be managed in their untrammeled state and be free of roads and commercial enterprise. That's in contrast to the agency's other 157 million acres, which are open to a plethora of uses.

While the 1964 Wilderness Act is regarded as the nation's most restrictive land-use law, it made an exception that allows "commercial services" to be performed as long as they are "proper for realizing the recreational or other wilderness purposes of the areas."

This has generally applied to guides and outfitters who take clients on backcountry camping or hunting trips, but the Forest Service also includes commercial filming and photographs under this exception.

The service's proposed directive states that permits for journalists will be approved as long as the newsgathering has no alternative locations and "has a 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."

Moreover, the agency can charge fees up to $1,500 per day per permit -- though the actual fee would more often be $10 -- for taking commercial video or photos in a wilderness. Personal photos are exempt.

The policy has landed the agency in hot water among First Amendment advocates and journalists, who fear the Forest Service could deny their permit if the content of their proposed story does not promote wilderness.

Jeff Burnside, president of the Society of Environmental Journalists and a reporter for Seattle's ABC affiliate, KOMO, said the proposed directive "raises many serious issues about restraint of newsgathering on public lands."

SEJ "has a number of practical, legal and constitutional concerns about its consequences, intended or otherwise," he said. "We plan to comment formally under the rulemaking process on how this directive could be improved to allow transparent and open reporting of wilderness conditions and issues."

Tracing proposal to law enacted in 2000

The conflict is not new. In 2007, SEJ and 18 other newsgathering organizations protested previous regulations that film crews get permits and pay fees to report on Interior lands. The groups pressed for an exemption for "journalism," saying the regulations were a restraint on newsgathering.

The controversy can be boiled down to two issues: First, to what extent can federal agencies demand newsgatherers follow the Wilderness Act's requirement that their activities further the purposes of wilderness? And second, are agencies allowed to require permits and fees? If so, should they apply to a single freelance journalist in the same way they apply to a Hollywood film crew?

Many journalists oppose characterizing their activities as commercial enterprises. Journalists are commonly given complimentary access to conferences and other newsworthy events -- granted on the assumption that they are there solely to disseminate information to the public. The same ought to apply to public lands, they argued.

Mickey Osterreicher, general counsel for the National Press Photographers Association, based in Durham, N.C., said requiring permits for ordinary newsgathering would "create a chilling effect on freedom of speech and of the press."

But "granting the service the ability to deny such a permit in the case of a journalist or news organization would, we believe, create an unconstitutional prior restraint on those newsgathering activities," he said.

According to The Oregonian, which broke news of the Forest Service policy Tuesday, the Alexandria, Va.-based Reporters Committee for Freedom of the Press is considering suing over the plan if the Forest Service continues to pursue it.

Oregon Democrats responded with disbelief.

"Think again @forestservice. Wilderness photo rule raises serious 1st Amendment issues," said a Twitter post by Sen. Ron Wyden, who previously led the committee overseeing the Forest Service and still wields considerable influence over the agency.

Rep. Peter DeFazio said he will organize a bipartisan letter opposing the plan, according to the Statesman Journal in Salem, Ore.

What's peculiar about the controversy is that the Forest Service has had this wilderness policy in place for more than four years (it now wants to make it permanent). Moreover, agency regulations requiring fees and permits for commercial filming or photography in any Forest Service area, including wilderness, have been on the books much longer.

For that, people can thank Congress, which passed a measure in 2000 saying the Forest Service and Interior Department agencies "shall establish a reasonable fee" for commercial filming "or similar projects" that would provide a "fair return" to the American taxpayer.

It's the intersection of this law with the Wilderness Act that has gotten the Forest Service into trouble, said Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, based in Eugene, Ore.

One problem is that the Forest Service gets to keep the revenue from permits it issues under the 2000 law, which gives it an incentive to allow big-budget films in wilderness areas, Stahl said.

"And once you implement that permit program for films in wilderness, you have to decide which types of films can happen in wilderness," he said. "That's where you run head-on into the First Amendment."

Who decides on 'breaking news'?

But the 2000 law appears to exempt most still photography from the need for permits. For example, it forbids the agencies from requiring permits for photos taken where the public is generally allowed. It requires permits if the photos require special access or would use props or models that are unnatural.

The Forest Service and Interior appear to have split on the issue of whether newsgatherers, as opposed to Hollywood filmmakers or television shows, must pay for and obtain a permit.

Interior's final permit regulations, issued a year ago, stated that news organizations "may" be required to obtain a permit for filming and photography "when time allows" and if the activity could damage resources or disturb or threaten other public lands users. Newsgathering is not subject to cost recovery charges or location fees, the Interior rule states.

"We agree that news gathering should not be treated in the same manner as other commercial filming activities," the agency said.

The Forest Service collects fees for commercial filming and photography under regulations passed before the 2000 law. According to the agency's website, use and cost recovery fees are required for television broadcasting and documentaries, as well as for commercial still photography that requires special access or uses props or models.

The agency's policy seems to exempt photos collected for most news stories.

The Forest Service failed to respond to an email seeking clarification.

Notably, neither agency requires a permit for "breaking news," though it's up to agencies to decide what fits that mold.

"The last thing anyone wants is for some bureaucrat, ranger or service employee to be in a position to decide not only what is or is not commercial photography/filming but also determine what constitutes 'breaking news'!" NPPA's Osterreicher said.

For example, covering the first day of a wildfire would be considered breaking news in most people's judgment. But what about three weeks later, he asked, when the fire still threatens homes and properties but is not necessarily front-page material?

While news outlets yesterday reported that the Forest Service could charge as much as $1,500 for a permit for commercial film or photos in a wilderness, it's unlikely any journalists would be charged that.

According to a fee schedule proposed in August 2013 by the Forest Service and Interior, a broadcast crew of three or fewer that uses a camera and tripod would be charged $10 a day to film on any public lands, including wilderness. The same fee applies for up to three commercial photographers.

Fees escalate to $1,500 a day for commercial video crews of 70 or more, which is more characteristic of a Hollywood production that's likely able to pay.

It is unclear whether a news organization has ever been denied a permit to report in a wilderness or prosecuted for failing to obtain a permit.

Ed Jahn, a producer and reporter with "Oregon Field Guide," a program of Oregon Public Broadcasting, told the Associated Press yesterday that the Forest Service has asked his crew about a dozen times over the past several years to get a permit to film in wilderness. Each time, he said, the crew refused to get a permit and filmed its story anyway.

'Protected for the people, not from the people'

The Forest Service's policy has put wilderness advocates in an uncomfortable position.

Wilderness areas should be managed in their untrammeled state and free of commercial enterprise, as the 1964 law requires, they said. But most newsgathering efforts -- particularly photography -- don't threaten wilderness values, said Paul Spitler, director of wilderness campaigns at the Wilderness Society.

"The Forest Service needs to apply some more common sense here," he said. "Prohibiting news media from entering a wilderness? To me, that's a clear violation of the Constitution."

Spitler said wilderness is supposed to be "protected for the people, not from the people."

While protecting the nation's last remaining roadless lands is critical, "no law is above the Constitution," he said.

George Nickas, executive director for the Missoula, Mont.-based Wilderness Watch, a watchdog group that at times sues the government to restrict what it argues are incompatible uses in wilderness, said the Forest Service is required to prohibit commercial enterprise within wilderness areas, and rightly so.

"We're not in a position to make the call as to whether what you do is a commercial enterprise," Nickas said. "But once the Forest Service deems it commercial, it must be prohibited."

Nickas said he believes the Forest Service's commercial filming policy allowing Hollywood crews into wilderness areas is likely illegal. At a minimum, it requires it to make controversial judgments over content, which raises free speech issues, he said.

"They're getting themselves in a quagmire," he said.

The wilderness policy is largely driven by the proliferation of hunting and fishing shows and documentary filmmakers, not the news media, Nickas said.

Doug Scott, a wilderness historian who retired in 2012 from the Pew Charitable Trusts, said the prospect of news organizations being banned or restricted in wilderness areas "is nuts."

He said he has been in wilderness with a film crew -- including a producer, camera operator and sound technician -- and no permits were required. As far as he knows, the Forest Service has not charged for newsgathering in wilderness.

He also noted that the Wilderness Act also promotes education of wild places, which suggests its authors intended to allow media access.

"The beauty of statutory language is it isn't ossified in time," he said.