Is selling drone maps of geographical information for construction companies a form of protected speech, or is it surveying without a license? It’s the crux of a legal case originally filed in North Carolina and decided by a Fourth Circuit Court of Appeals panel on May 20.
Entrepreneur Michael Jones of Apex and his company, 360 Virtual Drone Services, wanted to provide customers with aerial maps and 3D digital models but faced push back from the North Carolina Board of Examiners for Engineers and Surveyors, which characterized those activities as practicing land surveying without a license, in violation of state law.
So the company filed a lawsuit, arguing that the board’s restriction on its ability to offer those services without first going through the rigorous process of obtaining a surveyor’s license violated its First Amendment rights. A district court sided against it, and the Fourth Circuit followed suit this week, concluding that the board “has not violated Plaintiff’s First Amendment rights.”
Jones told Triangle Business Journal that when the board told him he was breaking the law, "I could hardly believe it."
"I didn’t think that I was doing anything that could be considered surveying," he said yesterday. "In fact, I don’t know of any surveying company that even uses drones the way 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."
Sam Gedge, an attorney with Institute for Justice representing 360 Virtual Drone Services, said the plan is to pursue further review, either from the full Fourth Circuit or from the U.S. Supreme Court.
“Today’s ruling says that the state can criminalize sharing certain types of photos without a government-issued license," he said May 20. "And it does so on the theory that such a law somehow does not regulate ‘speech.’ That reasoning is badly flawed. Taking photos and providing information to willing clients is speech, and it’s fully protected by the First Amendment.”
Jones started providing photography and videography services in the state in 2016, founding 360 Virtual Drone Services a year later. Jones had taken an exam to be certified by the Federal Aviation Administration to pilot the drone and initially offered standard photography and videography services for events like weddings. But when he began offering aerial mapping services, advertising that his maps could be used by construction companies, trouble emerged, court documents show. Via a December 2018 letter, the board informed Jones that it was opening an investigation into whether his firm was illegally practicing land surveying. The following June, it found the company in violation of its rules. Jones filed suit in March 2021.
The Fourth Circuit noted in its opinion that the regulation is aimed at professional conduct that “incidentally burdens speech,” as opposed to specifically being aimed at speech. In the case of licensing regulations, it targets untrained people selling maps with measurable data that “carries economic and legal consequences,” the court notes.
“Experience shows that even very minor discrepancies in measurements can create significant liability issues,” the order, by Circuit Judges G. Steven Agee, James Andrew Wynn and Stephanie Thacker states.
Douglas Hanna of Fitzgerald Hanna & Sullivan represented the board and did not immediately return a request to comment on the case.
Practicing land surveying without a license could mean a criminal misdemeanor, according to state law.
