From Sixth Circuit Judge John Bush's very interesting opinion Friday respecting denial of rehearing en banc in Yoder v. Bowen:
This case involves an as-applied challenge to a Michigan law (the drone statute) that makes it illegal to "us[e] an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight"—i.e., a drone—while "tak[ing] game or fish." Drone Deer Recovery, a plaintiff here, offers a service where it tracks downed animals using drones and then posts the location of the animals' carcasses online so hunters can more easily find their kill. The plaintiffs allege that the drone statute violates their First Amendment rights because it (1) is a content-based speech restriction, (2) violates the speech-inputs doctrine, and (3) unconstitutionally restricts their ability to engage in inherently expressive conduct. The panel rejected all three arguments and determined that the statute survived intermediate scrutiny.
{We have referred to a type of protected speech as "speech inputs," but it goes by different names in different jurisdictions. The Tenth Circuit, for example, has referred to it as "the protected creation of speech," and the Supreme Court has referred to it as "[s]peech in aid of" protected speech.}
I write separately because I have concerns about the panel's reasoning related to the speech-inputs doctrine. The Supreme Court has indicated that "heightened scrutiny"— something more than O'Brien intermediate scrutiny—applies when the government seeks to ban the means to create speech. See Sorrell v. IMS Health Inc. (2011) (noting that a Vermont statute banning the sale of certain pharmaceutical data effectively banned certain entities from speaking with physicians and pharmaceutical companies and was therefore subject to "heightened scrutiny").
