A federal court found that a Forest Service regulation prohibiting commercial activity without a permit was unconstitutionally vague as to the activities of a social media content creator. The plaintiff in the case took photographs of himself riding a snowmobile on national forest land. He then posted the photos on his Instagram account. The Forest Service charged the plaintiff with a crime for violating an agency regulation that prohibited commercial activity on National Forest System lands without a permit. The court found:
[T]aking photos for social media has become a widespread contemporary phenomenon. And it could not be the regulation’s purpose to criminalize such behavior as a work activity simply because an individual’s identity is tied to his or her work.
The court also held the regulation was invalid in the situation at hand because “[u]nder the government’s theory, and confirmed at oral argument, any person who takes a photo at Keystone Resort and later posts it on a social media account could be arrested if the posting bore some proximal relationship to the commercial undertaking.” Because the regulation “vests unfettered discretion in the hands of the government” to assert an individual had violated the regulation, it was found impermissibly vague.
