4th Circuit Says Using Drones To Photograph Property Isn’t Protected By The 1st Amendment
The ultimate lesson here is one that’s been taught over and over again by the government of a free nation: if you attempt to bypass government revenue generation mechanisms, expect to get put in your place, citizen.
Back in 2021, North Carolina resident Michael Jones — with the assistance of the Institute for Justice — sued the state for preventing him from operating his business. Jones is a drone operator and photographer. The service he offers is the photography of a property owner’s land. The drone photography is then processed by Jones to offer a basic overhead map of the property. And it’s not as though it’s mistakable for the work product of licensed surveyors who have access to better tools. According to the court decision, this “processing” was little more than stitching shots together with Photoshop and hand-drawing rudimentary “property lines.”
The state says Jones can’t do this — not without a surveyor’s license. Acquiring a surveyor’s license means shelling out money to get certified. This is clearly ridiculous since Jones’ business only conveys facts about the land being photographed, something that could be ascertained by anyone with access to the same tools.
But because the North Carolina Board of Examiners isn’t collecting fees from Jones, it has declared his actions illegal. And it has said this despite Jones making it clear to customers he is not offering surveying services and instructing them that any information he produces for them cannot be used for legal purposes, including the establishment of property lines.
If landowners want legally useful info, they’ll still have to approach government-licensed surveyors, even though a lot of this information (elevation, geographical coordinates) can be obtained simply by using free services like Google Maps.
Unfortunately, trying to prove that drone photography of people’s property is protected speech, rather than something strictly controlled by state regulators hasn’t worked out for Jones. He lost at the district court level. And, as the Institute for Justice reports, the Fourth Circuit Appeals Court has reached a similar conclusion.
Yesterday, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that North Carolina may ban the creation of aerial maps by everyone except licensed land surveyors. The ruling strips away the First Amendment rights of Michael Jones, a Goldsboro, North Carolina, drone operator—along with many other innovative entrepreneurs in the state. Michael, along with the Institute for Justice (IJ), will seek further appellate review of the court’s decision with the goal of restoring Michael’s right to communicate with clients without government interference.
The decision [PDF] explains its reasoning, but you’re not going to learn too much from its rationalization of a state’s bizarre claim that it’s entitled to regulate certain forms of aerial photography — even if the aerial photographs were obtained with the explicit consent of the owners of the land being photographed.
The ruling at least takes the time to explain that obtaining a surveyor’s license is a “rigorous process” with multiple steps and several (apparently arbitrary) requirements, including the demand that people in this business possess at least a bachelor’s degree in surveying or, failing that, nine years of practical experience.
While I can understand the government might want to deter non-experts from sending a drone skyward and pretending they’re in the surveying business, at no time did Jones ever claim to be licensed surveyor and made it explicitly clear to his customers that his offerings were not the legal equivalent of those produced by those with a government-issued surveying license.
But that wasn’t enough for the state and its regulation board. So, it has fought Jones’ lawsuit, presumably because doing otherwise might mean missing out on some of this presumable trickle of income from surveyor licensing.
Jones’ lawsuit emphasized the First Amendment right to gather and present information — something that covers everything from journalists seeking information from sources to people publishing photographs of Barbra Streisand’s house. Unfortunately, two courts in a row — now including one capable of setting circuit precedent — have said otherwise. The state’s insistence that unlicensed surveying might cause problems at some point is all that’s needed to declare Jones’ I-have-literally-told-everyone-I-am-not-a-surveyor non-surveying business more illegal than constitutionally protected.
According to the Fourth Circuit, drone photography of property (which may or may not later be modified into something approaching a licensed surveyor might produce) isn’t subject to the rigorous examination required of statutes that affect stuff most people would assume to be protected by the Constitution. Instead, it’s the other thing.
Because the Act is a regulation of professional conduct that only incidentally impacts speech, our precedent requires that we apply a more relaxed form of intermediate scrutiny that mandates only that the restriction be “sufficiently drawn” to protect a substantial state interest.
Oh, OK. So if the court says it’s conduct and not speech, screw all the speech stuff, I guess. Then it compares it to previous precedent that doesn’t seem all that applicable (like the unlicensed practice of law or medicine) to arrive at the conclusion that favors the government and its desire to ensure it can extract licensing fees from people who explicitly warn potential customers that they are not in the business the government is trying to regulate.
[T]he Act in this case protects the professional integrity of surveyors: a surveying license is not easy to obtain, and there is a public interest in ensuring there is an incentive for individuals to go through that rigorous process and become trained as surveyors. Further, the Act protects consumers from potentially harmful economic and legal consequences that could flow from mistaken land measurements. Tellingly, when asked how a client would be “protected” in the absence of the Act “against somebody who really doesn’t know what they are doing but is [offering] the client services in the field of photogrammetry,” Plaintiffs’ expert responded, “That’s up to the client”—meaning, he agreed, “buyer beware.” We agree with the Board that the First Amendment doesn’t require the State to accept this caveat-emptor view of regulating surveying.
I understand the rationale a bit, at least the part about protecting the public from people who don’t have the expertise in the subject presenting themselves as experts. But that would only make sense if that’s what Jones had done. He didn’t. And the court’s spinning Jones’ warning to customers that he (1) wasn’t licensed as a surveyor, and (2) anything he produced had no legal weight into something equivalent to “buyer beware” is a bit disingenuous. The buyer has been warned, but it is on the buyer if they choose to use Jones’ photographs and maps to do things they’ve been told they can’t be used for.
This leaves Jones in a pretty unenviable position. The business he performs can no longer operate in the state he resides without him being fined or sued by the state government. He can appeal this (and the IJ plans to keep fighting this) to the Supreme Court, but getting a case picked up by that court means appealing to the sensibilities of certain judges with ideological axes to grind. This case doesn’t have that sort of hook. For now, drone photography (and subsequent conversions to maps) by non-licensed North Carolina residents remains illegal, rather than what it should be: protected expression that just happens to be something people might want to pay money for.