Feb. 13, 2015
Contact: OWAA President Mark Freeman
Below is a summary of the position we have developed with respect to the U.S. Forest Service proposed regulations requiring permits to film on Forest Service land.
While we await a new directive from the Forest Service based on very positive comments offered last fall, there is now another venue in which fees and permits for news gathering on all public lands is being vetted.
The Bipartisan Sportsmen’s Act of 2015, introduced in the U.S. Senate on Feb. 5, includes a $200 per year permit proposal for any crews of five people or smaller while filming on all public lands. It currently does not offer exemptions for working journalists as Forest Service Chief Tom Tidwell outlined in how he wants the current temporary rules applied on Forest Service land.
We maintain that lumping journalists who are disseminating information about the public’s own lands with television advertising and feature film crews’ work could lead to serious First Amendment implications and quite likely infringements.
While we are limited in what we can do in terms of lobbying on legislative matters as a nonprofit organization, OWAA members may inform their representatives and senators about their personal views on this sliver (Section 106) of the Sportsmen’s Act.
Access to Public Lands for Journalists
The Outdoor Writers Association of America (OWAA) believes improvements should be made to directives regulating commercial filming or photography on public land so as not to impede the important work of any OWAA member or other professional journalists. The OWAA is especially concerned about the impact existing federal regulations have on our members who are freelancers.
Based on our discussions with U.S. Forest Service Chief Tom Tidwell during the Forest Service’s rulemaking “Proposed Directive for Commercial Filming in Wilderness” and a review of existing rules, OWAA strongly believes all agency regulations of this nature should specifically exempt professional journalists, working on an assignment for a media outlet or gathering information, images or footage to sell to a media outlet. Such directives must be fully communicated to the field.
- A clearly stated exemption for working media is needed to ensure that the language does not accidentally put federal land managers in a position of violating the First Amendment freedoms against prior restraint.
- Definitions of journalism should include but not be limited to breaking news, b-roll film, feature news, news documentaries, long-form pieces, background, blogs and any other output that could be considered related to news gathering or reporting.
- The OWAA recommends language be added addressing the scope of the regulations so that the newsgathering definition and exemption for working journalists will be consistently interpreted by all present and future federal employees.
- OWAA members appreciate and value our natural resources and seek rules that restrict the improper commercialization of federal lands, especially designated wilderness areas, without restraining the reporting dynamics of outdoor communicators. Our work brings the majesty of public lands to life for Americans, our readers and viewers and owners of these spectacular lands.
First Amendment Protection
In order to address these First Amendment concerns, OWAA recommends the following language be added to regulations of this nature: “Constitutionally protected activity of journalists, as used in these regulations, includes journalists, working on an assignment for a media outlet, or gathering information, images or footage with the intent to sell them to a media outlet.”
This language would address the range of professional activities by OWAA members, including journalists on assignment – either freelancers or staffers – as well as journalists packaging a story for future sale to a yet-unidentified media outlet. This so-called “working on spec” is common, for instance, in the magazine publishing realm when publishers enter into contractual agreements only for completed works. It would include filming b-roll film for future stories not yet assigned or sold.
The specifically stated exemption is important because it best reflects the industry of today and the future. While the term “filming” may have been intended to mean movies or commercials, it incorrectly encompasses activities by virtually all outdoor media professionals working today. Even newspaper staffers routinely shoot videos, sometimes with just their phones, as an extra medium published on newspapers’ websites.
Under existing regulations, federal land managers could believe it their duty to make sure working journalists are following the filming and photography requirements before those activities occur. This could lead to, for example, a federal employee improperly requiring that a journalist apply for a permit for review to determine whether he or she considers the planned newsgathering activity as meeting public land access criteria. This therefore would become an unprecedented review of a journalist’s activities prior to publishing – a violation of First Amendment protections against prior restraint by government.
Without this clearly stated exemption, both federal agencies and working journalists could misinterpret the language and intent, resulting in inconsistent application of the rules and serving no positive end.
The term “newsgathering” is subject to a range of interpretations. Some suggest that it means coverage of breaking news, such as wildfires.
But the newsgathering process actually accounts for a wide array of activities, from breaking news to news-features to profiles and the collection of B-roll footage.
The OWAA also recommends the following language be added addressing the scope of the regulations so that the newsgathering definition and exemption for working journalists will be consistently interpreted by all present and future federal employees. This proposal is based upon language in the National Park Service regulations addressing this issue.
Newsgathering activities and other constitutionally protected activities of journalists involving filming, videography or still photography do not require a permit unless:
(1) A permit is necessary to protect natural and cultural resources, to avoid visitor use conflicts, to ensure public safety or authorize entrance into a closed area; and
(2) Obtaining a permit will not interfere with the ability to gather the news or with other constitutionally protected activities of journalists.