Dan King
Dan King · April 3, 2023

NEW BERN, N.C.—Last Friday, Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of North Carolina upheld a North Carolina restriction on who can create aerial maps against a First Amendment challenge brought by a Goldsboro, N.C., drone operator and the Institute for Justice (IJ). 

For years, the state’s land-surveying board has targeted small-time drone operators, claiming their maps and models amount to illegal “surveying.” In its decision on Friday, the court approved the board’s position. The court acknowledged that “the use of drones to capture images for the purpose of conveying ‘orthomosaic’ or ‘measurable’ information is protected expression.” Even so, the court ruled that North Carolina can punish drone operators if they create and share even basic information about land without first getting a land-surveyor license. 

Unlike many states, North Carolina classifies even basic aerial mapping as “surveying,” demanding a full surveyor’s license (which requires years of education and experience). In recent years, the state’s surveying board has enforced its law vigorously against small drone companies, threatening them with civil and even criminal penalties. 

One of the targets of the board’s threats was Michael Jones, a Goldsboro drone enthusiast who has long wanted to develop an aerial-mapping business. The surveying board sent Michael a cease-and-desist letter in 2019, demanding that he shut down his fledgling mapping operations.  

“Licensing boards should not be able to use their authority just to protect businesses from competition,” said IJ Attorney James Knight. “The government should step out of the way and let innovative businesses like Michael’s continue serving their customers.” 

Michael sued the board to vindicate a simple proposition: creating and sharing visual information about land isn’t “surveying”—it’s free speech, and it’s protected by the Constitution.  

The district court rejected that view in Friday’s decision.  

“Drone technology may be new, but the principles at stake in Michael’s case are as old as the nation itself,” said IJ Senior Attorney Sam Gedge. “Just weeks ago, the federal court of appeals overseeing North Carolina ruled that meaningful First Amendment scrutiny is a ‘nonnegotiable requirement’ when the state tries to restrict speech. The trial court’s decision in Michael’s case breaks with that teaching at a bedrock level.” 

Michael and his company, 360 Virtual Drone Services LLC, will be appealing Friday’s decision to the 4th U.S. Circuit Court of Appeals. 

“When the surveying board first told me 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. I’m looking forward to the court of appeals hearing my case.” 

The Institute for Justice 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 has won appeals court decisions in free speech cases on behalf of a veterinarian in Texas and tour guides in Charleston, South Carolina.