Andrew Wimer
Andrew Wimer · March 23, 2021

Raleigh, N.C.—Drones are revolutionizing the way we view the world, making aerial photography easier and less expensive. But drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.

Now, drone entrepreneur Michael Jones is fighting back. The images and maps that Michael was creating for willing customers were not being used to set legal boundaries; they were purely for informational purposes. And creating and sharing information is speech protected by the First Amendment. To protect his right to free speech, Michael is teaming up with the Institute for Justice to file a federal lawsuit.

“Drone technology may be new, but the principles at stake in Michael’s case are as old as the nation itself,” said Sam Gedge, an attorney with the Institute for Justice. “Taking photos and providing information to willing clients isn’t ‘surveying’; it’s speech, and it’s protected by the First Amendment.”

Michael is a Goldsboro, North Carolina, photographer and videographer who expanded into drone imagery about five years ago. Michael’s drones took photos of homes for sale, buildings under construction, and a warehouse that wanted to use thermal imaging to see where heat was escaping. He also used his drones to stitch together images into orthomosaic maps composed of multiple images.

It was not until he received a warning letter from the Board in December 2018 that Michael had any idea that what he was doing could be considered “surveying.” He had always been careful to note that his work did not establish property lines and could not be used for legal purposes. But a Board investigator told him that providing images with any metadata (information about GPS coordinates, elevation, or distance) or that stitching together images qualified as surveying and required a full-blown, state-issued license. Worried about the Board’s threat that he could be fined or even criminally prosecuted, Michael shut down much of his drone business.

“When the surveying board wrote that I was breaking the law, I could hardly believe it,” said Michael. “I didn’t think that I was doing anything that could be considered surveying. In fact, I don’t know of any surveying company that was using drones like I was.”

The Board—which is chaired by a licensed surveyor—has a strong incentive to define “surveying” broadly to prevent competition that could impact surveying businesses. But the First Amendment prohibits the government from restricting free speech, and free speech includes taking photographs and sharing information about the photos. And just because Michael sells his images to willing buyers does not mean that the government can ban his speech.

“This is just the newest example of a licensing board expanding its authority to crack down on competition,” said IJ Attorney James Knight. “But licensing boards should not be able to use their authority just to protect businesses from competition. The government should step out of the way and let innovative businesses like Michael’s continue serving their customers.”

IJ defends First Amendment rights and economic liberty nationwide. In December 2020, IJ successfully defended a Mississippi mapping company that was similarly charged by its state’s surveying board with unlicensed practice. IJ also recently won appeals court decisions in free speech cases on behalf of a veterinarian in Texas and tour guides in Charleston, South Carolina.