ARLINGTON, Va.—Yesterday, the Institute for Justice (IJ) filed a petition of certiorari with the United States Supreme Court on behalf of Michael Jones, an entrepreneur in North Carolina who runs a business as a drone photographer. The petition raises an important question about whether providing useful “data” and “information” in aerial photographs is speech with full First Amendment protection or whether state licensing boards have special leeway to censor them.
For years, North Carolina’s land-surveying board has targeted small-time drone operators, claiming their aerial maps and models amount to illegal “land 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). In recent years, the surveying board has enforced its law vigorously, threatening small drone companies with civil and even criminal penalties.
Michael Jones 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 publicly available digital tools to stitch the images together into a map or 3D digital model.
But North Carolina’s surveying board had other ideas; it cracked down on Michael’s efforts before he got off the ground. In 2019, the agency sent him a cease-and-desist letter demanding he shut down his fledgling mapping operations or face civil and criminal penalties. In response, Michael sued, seeking to vindicate a simple proposition: his aerial maps—his photographs—are speech protected by the First Amendment. And the government cannot criminalize the communication of aerial photographs simply because of the “data” and “information” they contain.
This past May, the Fourth U.S. Circuit Court of Appeals rejected Michael’s case. Despite a long history of robust First Amendment protection for images and visual information, the court’s decision carved out Michael’s creation of maps as “conduct,” not speech. Embracing a murky “non-exhaustive list of factors” to guide its analysis, the court even reasoned that because Michael’s speech takes place on his clients’ private property, the government somehow needs less justification to target him than if his speech took place on public land.
“I’ve always been clear what I’m doing isn’t setting property lines. It’s simply providing pictures and information,” Michael said. “I even included a big red disclaimer on my website saying I’m not a licensed surveyor, but the board shut me down anyway. I don’t know of any surveying company that was using drones like I was.”
Now, Michael is asking the Supreme Court to take up his case and protect the First Amendment rights for everyone who is simply providing information to willing customers.
“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, and in doing so, the court deepened a nationwide split among the federal courts.”
With its eye-of-the-beholder legal standard, the Fourth Circuit split directly with decisions from the Fifth Circuit (covering Texas, Mississippi, and Louisiana) and the Eleventh Circuit (covering Florida, Alabama, and Georgia).
“When a government agency sends a cease-and-desist letter telling you to stop communicating photographs containing specific types of ‘data’ and ‘information,’ that’s a red flag that serious First Amendment interests are in play,” added IJ Attorney James Knight. “The Fourth Circuit’s ruling was badly flawed, and it spotlights the lower courts’ confusion about the power of licensing boards to censor speech.”
IJ defends First Amendment rights and economic liberty nationwide, and Michael’s case demonstrates the need to address this increasingly common situation, which is also being raised in a similar petition of certiorari that IJ is filing on behalf of a California map maker. Other examples include IJ’s successful defense of a Mississippi mapping company that—like Michael’s—was charged by its state surveying board with unlicensed practice and IJ’s defense of death doulas resisting overreaching enforcement actions by California and Indiana funeral-director licensing boards.
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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/