RICHMOND, Va.—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.

For years, North Carolina’s land-surveying board has targeted small-time drone operators, claiming their maps and models amount to illegal “surveying.” 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). The surveying board has recently enforced its law vigorously, threatening small drone companies with civil and even criminal penalties.

Michael was one of the board’s targets. A Goldsboro-based photographer and FAA-licensed drone operator, Michael has long wanted to develop an aerial-mapping business. Many landowners find a bird’s-eye perspective on their property useful in situations where they do not need a full-blown land survey. Michael wants to offer a solution—use his drone to take aerial photographs of a client’s land, then use readily available digital tools to stitch the images together into a map.

But the surveying board stopped Michael’s efforts before he got off the ground. In 2019, the agency sent Michael a cease-and-desist letter demanding he shut down his fledgling mapping operations or face harsh penalties.

“The court’s decision today injects uncertainty into a basic question of First Amendment law: How do we determine when speech is speech?” said IJ Attorney James Knight. “Today’s ruling says that the state can criminalize sharing certain types of photos without a government-issued license. And it does so on the theory that such a law somehow does not regulate ‘speech.’ The ruling is badly flawed: Photographs are speech.”

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.  

Yet the Fourth Circuit’s decision today reasoned that Michael isn’t engaging in speech at all. Despite a long history of robust First Amendment protection for images and visual information, the court’s decision carved out the creation of maps as “conduct,” not speech, “that classically falls under the surveying profession.” Counterintuitively, the court also reasoned that because Michael’s speech takes place on his clients’ property, the government somehow needs less justification to interfere than if his speech took place on public land.

The court’s ruling allows North Carolina to enforce its law without trying to minimize its impact on free speech rights, placing Michael and other innovative drone photographers in jeopardy.

“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. “Taking photos and providing information to willing clients is speech, and it’s fully protected by the First Amendment. Only by badly misapplying the First Amendment could the Fourth Circuit hold differently.” 

Michael and his company, 360 Virtual Drone Services LLC, will seek further review, either from the full Fourth Circuit or from the U.S. Supreme Court.

“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 to keeping up the fight and getting justice, not just for myself, but for other drone operators across North Carolina.”

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

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To arrange interviews on this subject, journalists may contact Phillip Suderman, IJ’s Communications Project Manager, at [email protected] or (850) 376-4110. More information on the case is available at https://ij.org/case/north-carolina-drones/