Drones have a long history of being used to capture and share data. Beginning in the 1800s enterprising photographers used balloons and kites to lift cameras hundreds of feet into the sky to capture stunning images of American cities. Similarly, in Europe, not only were kites and balloons used to capture aerial shots, photographers’ also affixed cameras to pigeons for wartime surveillance. These early—and archaic—uses of drones show some of the unique benefits drones offer those seeking to capture and share information today.

In 2012, Congress approved the FAA Modernization and Reform Act requiring the FAA to establish comprehensive regulations for flying small drones and integrating them into the National Airspace System (NAS). To that end, in June 2016—over 4 years later—the FAA released its Part 107 rules to regulate commercial drones weighing less than 55 pounds. But those rules may be infringing on First Amendment rights, including freedom of the press and the right of individuals to gather information. Many argue that various aspects of Part 107 are unconstitutional because they are not sufficiently narrowly drawn and adequately tailored to respond to the government interest for which they were created to address.

The Part 107 rules that many argue are unconstitutional include the following: 1) the ban on drone flights over populated areas (14 C.F.R. §§ 107.39, 43, 45, 47); 2) the specific airspace restrictions (14 C.F.R. §§ 107.41, 51); 3) the licensing regime for drone operators (14 C.F.R. §§ 107.12, 13); 4) the prohibition on nighttime operations (14 C.F.R. § 107.29(a)); 5) the visual line-of-sight requirements (14 C.F.R. § 107.31); 6) the ban on operating a small drones from a moving vehicle (14 C.F.R. § 107.25); and 7) the ban on simultaneous operation of multiple drones (14 C.F.R. § 107.35).

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The First Amendment

The First Amendment to the U.S. Constitution states, in pertinent part, that “Congress shall make no law…abridging the freedom of speech, or of the press.” This language restricts the government’s ability to constrain citizens’ speech; but it is not absolute. Under certain circumstances, the government can restrict speech.

At first glance, the First Amendment appears to bar only laws that abridge speech. But the First Amendment does not just protect the spoken or written word. In fact, the U.S. Supreme Court has acknowledged that conduct may be sufficiently infused with elements of communication to fall within the scope of the First Amendment.

Generally speaking, to qualify for First Amendment protection, a person must show that he or she has a message to be communicated and an audience for that message, notwithstanding the medium through which that message is communicated. In short, conduct designed to convey a message to an audience, such as the use of drones for photography and videography as part of the newsgathering and reporting process, qualifies for First Amendment protections.

The extent to which the Government may restrict speech depends on three things: 1) whether the property or forum is public or nonpublic, 2) the content of the speech, or 3) the manner in which it is regulated.

For purposes of a First Amendment analysis, public property fits into one of three main categories: 1) a public forum, 2) a designated public forum, or (3) a nonpublic forum. Any public property that is neither a public nor a designated public forum is considered a nonpublic forum. Public fora are places “that have traditionally been devoted to expressive activity,” such as public parks, beaches, and sidewalks.

For content-based restrictions of speech in public fora, the U.S. Supreme Court applies a level of review known as “strict scrutiny.” This means that the Court will uphold a content-based restriction only if it is necessary to promote a compelling interest and is the least restrictive means—i.e., narrowly tailored—to further the articulated interest. Strict scrutiny is a difficult standard to meet. Because the government is not constitutionally allowed to favor one type of content or idea by suppressing or otherwise burdening another type of content or idea, a demanding analysis is required.

Non-content based restrictions on speech are less likely than content-based restrictions to violate the First Amendment because the Supreme Court applies an intermediate scrutiny framework—a standard of review less onerous than strict scrutiny. Under intermediate scrutiny, a restriction on speech must advance a “significant,” “substantial,” or “important,” (but not necessarily “compelling”) government interest. And the restriction must be narrowly tailored to achieve that interest. Yet it does not, as with content-based restrictions, have to be the least restrictive means to advance the governmental interest.

There are two categories of non-content-based restrictions on speech: (1) incidental restrictions, which are restrictions aimed at conduct other than speech, but which incidentally restrict speech; and (2) time, place, or manner restrictions on speech. To be clear, the courts analyze incidental and time, place, and manner speech restrictions under intermediate scrutiny.

Designated public fora are nonpublic fora that the government affirmatively opens to expressive activity. As with public fora, content-based restrictions on designated public fora must pass strict scrutiny.

Areas not traditionally or explicitly opened to expressive activity are deemed nonpublic fora, which are subject to a more lenient standard of scrutiny. Restrictions on nonpublic fora do not violate the First Amendment as long as the restriction is 1) reasonable in light of the purpose served by the forum and 2) viewpoint neutral. Examples of nonpublic fora include airport terminals, highway overpass fences, and interstate rest stop areas (including perimeter walkways).

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Is U.S. Airspace a Public or Nonpublic Forum?

Relying on a Ninth Circuit case, Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, the FAA argues that U.S. airspace is a nonpublic forum. In examining the history and purpose of U.S. airspace, the Ninth Circuit concluded that U.S. airspace does not fit the public forum category because it is not among those places that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”[1] Moreover, the Court noted that “one would be hard pressed to find another forum that has had its access as historically restricted as U.S. airspace.”

A traditional public forum is property that has as “a principal purpose…the free exchange of ideas.” The Ninth Circuit held that in light of the numerous restrictions placed on the use of U.S. airspace, its principal purpose can hardly be characterized as “promoting the free exchange of ideas.” In examining the physical characteristics of the airspace, the Court found that airspace is not an extension of the fora below because airspace is physically separate, requires special equipment and authorization for access, and has never typically been a locus of expressive activity.

For all that, many believe that airspace is a public forum, arguing that the holding in Center for Bio-ethical Reform should be limited to the facts of that case. They contend that Center for Bio-ethical Reform involved manned aircraft flying above 500 feet in altitude; not drones flying below 400 feet. Also, they argue that Center for Bio-ethical Reform does not answer the key question of whether a drone operating just above a public forum—e.g., 50 feet above a public park—should be considered as operating within the public forum.

Whether certain provisions of Part 107 infringe on the First Amendment is a developing topic. In the next post, with the principles discussed above in mind, we will explore and analyze the FAA’s argument that Part 107 is consistent with the First Amendment irrespective of what standard of review applied.

[1] The Ninth Circuit ruled out the possibility of airspace being classified as a designated public forum because the regulated airspace is the antithesis of an “intentional [ ] opening [of] a nontraditional forum for public discourse.”