Drone owner continues push for SCOTUS review of NC licensing dispute
A North Carolina-based drone company continues to seek the US Supreme Court’s review of a licensing dispute with state government regulators. A court filing in December argued that two recent appellate decisions from different parts of the United States should prompt the high court to take the case.
Lower courts have ruled against 360 Virtual Drone Services and owner Michael Jones. The 4th US Circuit Court of Appeals determined that state regulators had the authority to block Jones from providing drone services that amounted to the practice of land surveying without a license. Jones argued that the licensing restrictions violated his First Amendment speech rights.
Working with the Institute for Justice, Jones petitioned the US Supreme Court in September 2024 to take the case. Justices were originally scheduled to review the petition in January 2025. The case was scheduled for the high court’s closed-door conference four more times, including March 2025.
Yet justices have issued no decision about whether to accept the petition.
A Dec. 10 brief argues that two federal appellate courts have issued rulings that make the Supreme Court’s input even more important.
“[T]he Fourth Circuit introduced a novel standard for ‘distinguishing between licensing regulations aimed at conduct and those aimed at speech as speech,’” Jones’ lawyers wrote. “Rather than evaluating whether the challenged law is triggered by speech or by nonspeech conduct (the customary mode of analysis), the court instead developed a ‘non-exhaustive list of factors’ — including whether the restricted speech ‘takes place in the private sphere’ versus a ‘traditionally public space’ and whether the speech could be construed as ‘unpopular or dissenting.’ That standard conflicts with the standards of other circuits.”
The Fifth, Ninth, and 11th Circuits had set different standards, Jones’ lawyers argued. “The result is an intractable conflict on the threshold question presented here: whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this Court’s traditional conduct-versus-speech dichotomy.”
Since the initial Supreme Court petition, two other federal Appeals Courts have addressed the issue, Jones’ lawyers wrote.
“In August, the Seventh Circuit acknowledged the split implicated by petitioners’ question presented —citing the [4th Circuit] decision below by name,” according to the brief. “‘The division between speech and conduct has not been evenly applied throughout the country,’ the court remarked, ‘particularly when it comes to licensing schemes that determine which individuals can speak about certain topics.’”
“A month later, the Second Circuit deepened the split and aligned itself with the Fifth Circuit on the question presented here: in yet another as-applied challenge to an occupational-licensing scheme, the court held that New York’s unlicensed-practice-of-law statutes restricted the plaintiffs’ speech directly, not incidentally, and adopted the Fifth Circuit’s analysis,” the brief added.
“These decisions fortify both the split detailed in our petition and the need for this Court’s review,” Jones’ lawyers argued.
The latest brief echoed concerns Jones’ lawyers had raised in September 2024.
“This case presents an important threshold question concerning the application of the First Amendment to occupational-licensing laws: what legal standard should the courts use to determine whether such a law restricts speech or nonspeech conduct?” Jones’ lawyers had asked in the original Supreme Court petition. “On this question, the courts of appeals are irreconcilably split.”
The 4th, 5th, 9th, and 11th circuits have issued conflicting rulings, the petition continued. “In the past five years alone, in fact, three as-applied challenges to surveyor-licensing laws — specifically — have generated three different standards for determining whether the laws regulated the plaintiffs’ speech or their conduct.”
Jones’ petition argued that the case presented a question of “pressing nationwide importance.”
“With the growth of modern technology, more and more people earn their living not from their physical conduct, but from the information they can provide,” Jones’ lawyers wrote. “At the same time, the coverage of occupational-licensing regimes has ballooned, ‘from about 5 percent of workers in the 1950s to about one-quarter of workers today.’”
“Increasingly, States use that power to target speech — from parenting columns to medical advice to health blogs to horse-massage lessons to (as here) photographs,” the petition continued. “And in response, the lower courts have split on the most basic First Amendment question: whether this Court’s traditional speech-conduct standard applies to occupational-licensing laws.”
North Carolina state government lawyers responded to the Supreme Court petition in November 2024 by labeling the split among federal appellate courts “illusory.”
“The Fourth Circuit below also decided this case correctly,” state lawyers added. “By regulating the practice of land surveying, the North Carolina legislature seeks to protect consumers from individuals who lack sufficient training and experience to perform accurate measurements of real property. The law targets who may conduct themselves as a land surveyor and how they may practice that profession — not what they must say.”
Based on court precedent, “a regulation of this kind falls under the State’s longstanding authority to ‘regulate professional conduct, even though that conduct incidentally involves speech,’” state lawyers wrote.
The 4th US Circuit Court of Appeals in May 2024 affirmed a ruling favoring the licensing board. Appellate judges agreed that the board did not violate the plaintiffs’ constitutional rights.
“Michael Jones and his wholly owned company, 360 Virtual Drone Services LLC (‘Plaintiffs’), would like to provide customers with aerial maps and 3D digital models containing measurable data,” wrote Judge James Wynn for the unanimous three-judge appellate panel. “But the North Carolina Board of Examiners for Engineers and Surveyors (‘Board’) has taken the position that doing so would constitute engaging in the practice of land surveying without a license, in violation of the North Carolina Engineering and Land Surveying Act (‘Act’).”
“Plaintiffs sued various members of the Board in their official capacities, arguing that the restriction on their ability to offer these services without first obtaining a surveyor’s license violates their First Amendment rights.” Wynn added. “The district court granted summary judgment for Defendants. We conclude that the Board has not violated Plaintiffs’ First Amendment rights and therefore affirm.”
The North Carolina Engineering and Land Surveying Act spells out rules for conducting surveying operations in the state. “Obtaining a surveyor’s license is a rigorous process,” Wynn wrote.
Jones started offering photo and video services in North Carolina in 2016 and formed his company in 2017.
“Jones has never had formal instruction in drone piloting or photography — he has a GED, and his prior professional experience is in welding and information technology — but taught himself those skills using the internet. He also took an exam to be certified by the Federal Aviation Administration to pilot the drone. Through his company, Jones offered standard photography and videography services — for example, for weddings. So far, so good,” Wynn wrote.
“The trouble came when Jones also began offering aerial mapping services through his LLC, despite lacking a surveyor’s license in North Carolina (or any other state),” the 4th Circuit opinion continued. “On his website, Jones explicitly advertised that he could create orthomosaic maps and noted that they could be used, for example, by ‘construction companies [to] monitor the elevation changes, volumetrics for gravel/dirt/rock, and watch the changes and progression of the site as it forms over time.’”
Though it is “unclear from the record whether Jones ever actually provided an orthomosaic map to a paying customer,” the regulatory board notified Jones in December 2018 that it was opening an investigation into his business. Jones added a disclaimer to his website in January 2019, but the board sent him another letter in June 2019 indicating that it believed Jones was violating the state law.
Jones and his company stopped providing the disputed services, then filed suit in March 2021 with help from the Institute for Justice. They alleged “facial and as-applied violations of their free-speech rights under the First Amendment.”
US District Judge Louise Flanagan ruled against Jones in March 2023. “The court concluded that Jones had standing to challenge the statute based on his desire to create ‘two-dimensional and three-dimensional maps with geospatial data.’ And it concluded that the Engineering and Land Surveying Act implicated the First Amendment. But it found that the challenged provisions constituted ‘a generally applicable licensing regime that restricts the practice of surveying to those licensed’ and primarily regulated conduct rather than speech,” Wynn wrote.
Because the regulations applied to conduct rather than speech, the judge gave the challenged law “intermediate” rather than “strict” scrutiny. Both forms of scrutiny refer to the standards a judge applies when determining whether a law is constitutional. Applying intermediate scrutiny, Flanagan determined that the state law survived Jones’ challenge.
“[T]his appeal hinges on two questions of law: what level of scrutiny we must apply in evaluating the Act’s constitutionality as applied to Plaintiffs, and whether the Act can survive that scrutiny. Applying intermediate scrutiny, we conclude that it can,” Wynn wrote.
“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,” Wynn added.
“Plaintiffs do not dispute that protecting property interests and promoting the public welfare by assuring the public that the work performed by surveyors conforms to a minimum level of competence are substantial state interests,” the 4th Circuit opinion explained. “Nor could they. As the district court rightfully stated, ‘[a]s a general matter, the regulation of the practice of surveying safeguards property rights, which rights governments have a legitimate interest in protecting,’ and in this case ‘[t]he record evidence reflects that the Act establishes a minimum level of competence, thereby protecting the public from negligence, incompetence, and professional misconduct.’”
“[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,” Wynn wrote.
The court asked Jones’ lawyer how the public would be protected from people who offered photogrammetry services without knowing what they’re doing. “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,” Wynn explained.
“Plaintiffs may still engage in the activities that fall within their area of experience and expertise — namely, taking aerial photos — and can even draw rough property lines in certain circumstances,” Wynn wrote. “They only may not provide the sort of measurable data that falls within the realm of the profession of surveying.”
“States do not have a constitutional blank check when it comes to licensing regimes,” Wynn added. “And even where a regulation is in fact aimed at professional conduct, States must still be able to articulate how the regulation is sufficiently drawn to promote a substantial state interest. But where, as here, the State carries that burden, we can ask no more of the State, and its licensing requirement will survive First Amendment scrutiny.”
Judges Steven Agee and Stephanie Thacker joined Wynn’s opinion
“Drone owner continues push for SCOTUS review of NC licensing dispute” was originally published on www.carolinajournal.com.
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