At the end of September, six commercial companies were effectively granted permission to use drones to film and take photographs, unlike every other commercial drone operator, whose use of drones remains banned. The FAA, an agency tasked by Congress primarily with maintaining the safety of the public skies, is now in the business of granting commercial film permits.
As I’ve written elsewhere, drone photography and videography, like any kind of photography or videography, can raise significant First Amendment concerns. Photography and videography receive at least some degree of First Amendment protection, although the extent of that protection remains surprisingly debatable. But as long as the FAA maintained a general ban on commercial drone use while it developed safety and operational regulations, it was unlikely that a court would find that a newsgatherer would have an affirmative First Amendment right to use a drone where others do not.
The problem is that now the FAA appears to be playing favorites. All commercial uses of drones are banned—except for uses by those six companies that obtained an exemption (and by BP, which received an earlier exemption to use drones up in Alaska). There are 45 other applicants for an exemption under section 333, including a self-identified newsgatherer and a realtor who presumably wants to take photographs.
This potentially raises a First Amendment licensing issue. Does Congress’s treatment of these applications violate the First Amendment by putting too much discretion in the hands of government officials, allowing them to privilege one speaker over another? And if this is the case, what are the consequences for any licensing regime that happens to touch on First Amendment-protected activity?
The Supreme Court has long acknowledged that a too-discretionary licensing regime can raise serious First Amendment concerns. This is true even where a complete ban might be permissible. A brief recently filed at the NTSB on behalf of News Media Amici raised the specter of the FAA applying too-vague law in an arbitrary and discriminatory manner, in violation of the First Amendment.
But not all laws granting discretion to a decision-maker raise a First Amendment licensing problem. The Supreme Court clarified in Lakewood v. Plain Dealer that a speaker may not “challenge as censorship any law involving discretion to which it is subject.” The Court used the example of building permits: a newspaper seeking a building permit cannot facially challenge the law as affording too much discretion to a government official, because the law is not aimed at speech. The Court explained that to be subjected to facial First Amendment scrutiny, the “law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.”
But which kinds of laws have “a close enough nexus to expression”? Permit laws governing parades, mass gatherings, the use of soundtrucks, and the placement of newspaper vending machines have all triggered First Amendment scrutiny. Courts have indicated, however, that licensing regimes governing buildings, soda vending machines, and forest closures do not. These laws of general applicability, according to the Supreme Court, “provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse.” To show that the discretionary application of a general law violates the First Amendment, petitioners must challenge the law as applied.
Which kind of law is Section 333—a law of general applicability, or a law with a “close enough nexus to expression?” In other words, must Congress craft a drone licensing scheme within the stricter parameters set by First Amendment caselaw?
The FAA is generally tasked by Congress with maintaining air safety. Section 333 of the FAA Reauthorization Act gives the Secretary of Transportation the authority to determine
1. If certain unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security… [emphasis added]
The FAA and Secretary of Transportation then have the discretion to grant regulatory exemptions to certain drone users, as they have done.
Courts are unlikely to find that this delegation has a “close enough nexus to expression.” Yes, public gathering statutes also often center around legitimate safety concerns, but public gatherings have a time-tested historical relationship with freedom of expression and assembly. So does newspaper distribution. Drone flight, as of yet, does not. In other words, the current social meaning of drone flight is not the same as the social meaning of newspaper vending machines. Despite the fact that they carry cameras, drones are not cameras themselves.
This understanding could change, but it’s unlikely. Even though the Supreme Court has recognized that a law can have a “close enough nexus to expression” when it includes noncommunicative actors (such as a picnicker or a soccer player), courts are unlikely to decide that a law aimed at safety, addressed to an agency whose primary purpose is maintaining safety, concerning flying vehicles that raise safety concerns, is in fact aimed at expression or expressive activity.
If the FAA were to follow in the footsteps of the Forest Service and require permits for drone filming or photography rather than vehicle use, this would be a markedly different conversation. As the dissent in Lakewood pointed out, this might create a perverse incentive: legislators might legislate more broadly precisely to avoid First Amendment scrutiny.
However, if courts stray from Lakewood to subject broad legislation to First Amendment licensing requirements, this could have significant implications for the delegation of authority to agencies dealing with all new technologies that have a nexus with speech. If courts paint the definition of a “nexus to expression” with too broad a brush, then licensing schemes touching self-driving cars, smartphones, or the Internet of Things may also have to meet the First Amendment’s more stringent requirements. This potentially puts the First Amendment in tension with good innovation policy. As we attempt to encourage Congress not to rush to conclusions, and encourage agencies to experiment with regulatory schemes for new technologies, discretion may be something we want to afford them, rather than restrict.