United States: First Amendment in the Sky – Drones, Part 107, and Free Speech – Part II: Unto the Breach

In June 2016, the FAA released its final Part 107 rules, allowing the operation of commercial drones in the National Airspace System (NAS). Whether these rules are infringing on the First Amendment is a developing topic. In Part I, we discussed the First Amendment and the different standards of review courts apply to determine whether restrictions on speech are constitutional. Here, we will explore and analyze the FAA's argument that Part 107 is consistent with the First Amendment.

Restrictions on Speech in a Nonpublic Forum

Restrictions placed on activities that occur in a nonpublic forum receive the lowest level of First Amendment scrutiny. As noted in Part I, whether all U.S. airspace is a public or nonpublic forum is not clear.

Assuming, for the sake of argument, that airspace is a nonpublic forum, the FAA may impose restrictions in the NAS that are "reasonable and viewpoint neutral." This reasonableness analysis focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated.

The FAA argues that Part 107 directly addresses its interest in preserving the safety of aircraft flying in the NAS, as well as the safety of people on the ground. Thus, Part 107 is reasonable.

The FAA also asserts that Part 107 is viewpoint neutral because it does not specifically target a certain opinion or stance. In short, the FAA believes that Part 107 is consistent with the First Amendment under this standard of review.

Incidental Restrictions on Speech in a Public Forum

Now, let's assume that the NAS is a public forum. On that basis, the FAA asserts that the appropriate category in which to evaluate Part 107 would be as an incidental restriction on speech. In particular, the FAA posits that the activity regulated by Part 107—flying a drone—is not speech or an expressive activity.

Instead, according to the FAA, the flight of a small drone has only an incidental relationship to expressive conduct because it could be used to assist an expressive activity, such as recording via camera. At bottom, the FAA contends that attaching a camera to a drone simply does not transform flying that drone into expressive conduct.

But as noted in Part I, the U.S. Supreme Court has "acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope" of the First Amendment. In fact, conduct designed to convey a message to an audience is protected under the First Amendment.

Moreover, the First Amendment broadly protects photography and videography as speech that is intended to convey a message. Several courts have reaffirmed that videography and photography—key parts of the speech process and necessary to the distribution of information—qualifies as speech or expressive activity.[1] Accordingly, using drones to capture images and videos with the intention of sharing that message with an audience likely qualifies as speech that is intended to convey a message and is therefore protected under the First Amendment.

The FAA contends that Part 107 passes intermediate scrutiny. Part 107, according to the FAA, addresses aviation safety and does not directly regulate reporting or other expressive activity.

Further, the FAA asserts that anyone seeking to use a small drone for photography or videography in a manner not permitted under Part 107 is free to use another method of photography or videography. For example, a person could use a manned aircraft, film from a tall structure or landmark, film from the ground, or use specialized equipment.

The FAA concludes that because Part 107 is content-neutral and narrowly focused on the substantial government interest of regulating aviation safety, it meets the constitutional standard for an incidental restriction on speech, and enforcement would not implicate the First Amendment.

Time, Place, and Manner Restrictions on Speech in a Public Forum

To begin with, let us tweak our previous premise to assume that flying a drone in a public forum does qualify as speech or an expressive activity—which of course the FAA disputes. As noted in Part I, a constitutionally permitted time, place, or manner restriction on speech occurs when the regulation is 1) content-neutral, 2) narrowly tailored to serve a significant government interest, and 3) leaves open ample alternative channels of communication.

The FAA contends that Part 107 is consistent with the First Amendment as a permissible time, place, or manner restriction on speech for three reasons.

First, the FAA asserts that Part 107 is content-neutral because Part 107 applies equally to all remote pilots of small drones subject to FAA regulation, regardless of content. The regulation "is not being applied because of disagreement with the message presented." According to the FAA, there is no question as to the content-neutrality of the regulation in Part 107.

Second, the FAA maintains that Part 107 fulfills several legitimate needs, the most important of which is providing the safest, most efficient airspace system in the world. The FAA contends that all the provisions in Part 107 align with that principle. Hence, Part 107 is narrowly tailored to achieve a significant, substantial, and important government interest. Also, the FAA asserts that to discard the Part 107 provisions at issue would conflict with the FAA's stated mission of providing the safest airspace system in the world.

Lastly, the FAA claims that adequate alternative channels of communication are available for operations that are not allowed under the provisions of Part 107. The FAA notes that a First Amendment analysis does not require that a regulation be the least restrictive means of achieving the government interest, only that there not be a less restrictive alternative that serves the government's interest as efficiently as the regulation at issue.

The FAA points to the variety of other reporting, photography, and videography tactics that have been used prior to the existence of small drones that continue to be available to this day. For example, the capability to conduct aerial photography and videography using manned aircraft remains unaffected by this rule.

To sum, the FAA contends that Part 107 regulates activity in a nonpublic forum: the NAS. If we assume, for the sake of discussion, that the NAS is a public forum, the FAA contends that the proper framework in which to view the provisions of Part 107 is not under the category of time, place, and manner restrictions, but under the category of incidental restrictions on speech.

The FAA asserts that the flight of a small drone is not speech; it is conduct other than speech which may incidentally restrict speech. Yet the FAA maintains that even if Part 107 were to be analyzed using the more stringent time, place, and manner framework, the provisions of Part 107 would still be consistent with the First Amendment.

The FAA believes that Part 107 does not infringe on First Amendment rights. Yet until challenged and litigated in court, there will continue to be legal ambiguity because several questions linger: is U.S. airspace is a public or nonpublic forum?; does flying a drone qualify as speech or expressive activity under the First Amendment?

Answers to questions like these will help orient courts to determine whether First Amendment rights are being infringed. In addition to Part 107, a litany of existing or proposed state and local laws—intended to address the privacy concerns of citizens and to restrict using drones to capture and share data—may also be vulnerable to First Amendment challenges.

[1] See, e.g., Larsen v. Fort Wayne Police Dep't, 825 F. Supp. 2d 965, 980 (N.D. Ind. 2010); Glik v. Cunniffe, 655 F.3d 78, 82-83 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

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