A friend posted a picture on Facebook of a bear pooping in the woods with this message: "Now we know the Pope is Catholic."
Bears poop in the woods, but if you film the bear in his act of relief and post the video online, are you a journalist or just a pooper peeper? If your video goes viral and the Google Ads on it get you some green, does that make you a commercial film producer?
Those are important questions that a proposed county ordinance failed to answer. It was slated for adoption at a Board of Supervisors meeting this past week but they tabled it for now. That is reassuring, but the supervisors seemed to miss some deep constitutional concerns the language of this ordinance raises.
If the ordinance were to go into effect, anyone who's not a journalist or student or a charity worker who wants to film or photograph on county land would need to have liability insurance and pay $100 for a permit to do so. Even journalists would need a permit unless they are "reporters, photographers or camerapersons in the employ of a newspaper, news service, or similar entity engaged in on-the-spot print media, publishing or broadcasting, of news events concerning those persons, scenes or occurrences which are in the news and of general public interest."
The language for this ordinance came to the supervisors on April 21, so suddenly that they admitted not having had the time to fully research it. They each expressed concerns before unanimously approving it for a second reading. Mostly they were worried that the language in it required a permit for all commercial filming and taking of pictures. Supervisor Mark Lovelace said it seemed to require a permit for a professional photographer to take a picture of a perfect sunset on a county beach, if he or she intended to sell the photo.
Film Commissioner Cassandra Hesseltine said she did want all commercial moviemakers to first check in with her to see if they needed a permit, but our local people wouldn't have to worry; the ordinance was intended for big productions only. Supervisors Ryan Sundberg, Rex Bohn and Virginia Bass all expressed concern that the language in the ordinance didn't specify that, but Hesseltine said the county didn't want too much definition. "We have to be careful of over-defining," she said. "We want them to fill out an application and let us determine when they actually need the permit."
To me, this raises all kinds of constitutional red flags. We live in a visual world in which people communicate by posting photos to Twitter and Instagram. News organizations don't employ large staffs; they look to an army of freelance and citizen journalists. But the ordinance defines news media as: "the photographing, filming or videotaping for the purpose of spontaneous, unplanned television, news broadcast or reporting for print media by reporters, photographers or camerapersons." Does that not include the online-only Lost Coast Outpost? Does it not include local blogger John Chiv, who might make a little money from ads on his site? Does it exempt News Channel 3 to take what they call "B roll" — the filler video in news stories? Does it exempt my unemployed graduates who fill up their days filming stuff happening around them for documentaries they might one day pitch to Showtime?
Hesseltine assured the supervisors that the ordinance is only intended to allow the county to have some control over big film productions — the ones she brought up were a film that used live ammunition for shoot-'em-up scenes and some bonehead who wanted to take a piano into our redwood forest and set it on fire. She assured the supervisors that the county wouldn't try to restrict our local little guys. Local photographer Thomas Stewart said the ordinance, as written, could put him out of business. Hesseltine said that wasn't true.
But that's where the ordinance slips into a dangerous mix of vagueness and specificity. By defining news media as for "print" and for "on-the-spot" news, it does not exempt any other types of news media. And by specifically exempting "still photography for business advertisements completed at the business being advertised" (whatever that means), it vaguely applies the ordinance to anyone else, aside from students and charitable organizations, who might want to make money from the sale of film or photographs.
These days, with Google Ads, almost anyone can make money off their videos or photos. Anyone who hasn't done that just hasn't figured out how yet. And maybe Hesseltine has no intention of using the ordinance to try to prevent filming, but what about the next film commissioner, the guy who doesn't like people with diffferent politics? Or how about the film commissioner or county bureaucrat who really likes the mayor and doesn't like anyone filming political commercials to try to get him unseated.
County staff said they modeled the ordinance on similar ones already in effect in nearby cities — Arcata and Ferndale, for example. But they made the mistake of copying laws that violate the Constitution. In Arcata, the city has denied some people permits while waiving permit fees for the filming of a commercial for a local plumbing company.
Where would I fall under the proposed county ordinance? I am in the employ of no media organization. I don't write on-the-spot news. Under the ordinance, would I need to apply for a permit in order to pull out my smartphone and take video on county land if I intended to ever sell it?
Is the Pope Catholic?
—– Marcy Burstiner
Marcy Burstiner is chair of the Department of Journalism and Mass Communication at Humboldt State University. She congratulates 23-year-old Emily Reed at the Triplicate newspaper in Del Norte. This month Editor & Publisher magazine named her in its annual list of "25 under 35" people to watch in the newspaper industry. Her advice to people, according the magazine?