New technology continually helps our lives. In some cases, it creates new career opportunities.
But government restrictions can stand in the way. Rules can block technology from enhancing our lives and livelihoods.
The US Supreme Court could consider a North Carolina case that highlights this conflict between innovation and a government-enforced status quo. The nation’s highest court could blunt government’s ability to thwart new economic opportunities.
The case’s protagonist is Michael Jones. He started offering photo and video services in North Carolina in 2016 and formed his company, 360 Virtual Drone Services, the following year.
“Jones has never had formal instruction in drone piloting or photography — he has a GED, and his prior professional experience is in welding and information technology — but taught himself those skills using the internet,” Judge James Wynn of the 4th US Circuit Court of Appeals wrote in May 2024. “He also took an exam to be certified by the Federal Aviation Administration to pilot the drone.”
“Through his company, Jones offered standard photography and videography services — for example, for weddings. So far, so good,” Wynn added.
Jones built his business without massive investments of time and money in either traditional higher education or a lengthy training program.
Yet he ran afoul of North Carolina state government in 2018. He attempted “to provide customers with aerial maps and 3D digital models containing measurable data,” Wynn wrote.
The state Board of Examiners for Engineers and Surveyors determined those products amounted to “engaging in the practice of land surveying without a license.” Jones would be violating North Carolina’s Engineering and Land Surveying Act, according to the board. Regulators maintained that position even after Jones added a disclaimer to his website.
Jones dropped the disputed services, thus limiting potential business. But he and his company worked with the Institute for Justice to file suit against the regulatory board in March 2021. The complaint alleged “facial and as-applied violations of their free-speech rights under the First Amendment.”
US District Judge Louise Flanagan ruled against Jones in March 2023. A unanimous three-judge 4th Circuit panel led by Wynn affirmed Flanagan’s decision.
Jones and his IJ lawyers hope the nation’s highest court will take a different approach.
“With the growth of modern technology, more and more people earn their living not from their physical conduct, but from the information they can provide,” Jones’ lawyers wrote in a September 2024 Supreme Court petition. “At the same time, the coverage of occupational-licensing regimes has ballooned, ‘from about 5 percent of workers in the 1950s to about one-quarter of workers today.’”
“Increasingly, States use that power to target speech — from parenting columns to medical advice to health blogs to horse-massage lessons to (as here) photographs,” the petition explained.
To pique the high court’s interest, Jones’ lawyers argued that federal appellate courts across the country are “irreconcilably split” on a basic issue in the case. Judges in six different circuits have reached competing conclusions about whether similar occupational licensing laws restrict speech or conduct.
The distinction is important. A restriction on speech requires courts to approach a challenged law with more skepticism. In legal terms, they must apply “strict scrutiny.” If the law blocking Jones from providing disputed drone images and data targets conduct instead of speech, the courts can apply “intermediate scrutiny.”
This “more relaxed form” of intermediate scrutiny “mandates only that the restriction be ‘sufficiently drawn’ to protect a substantial state interest,” Wynn explained in 2024.
Wynn and his 4th Circuit colleagues “introduced a novel standard,” according to a Dec. 10 Supreme Court brief from Jones and his IJ lawyers.
“Rather than evaluating whether the challenged law is triggered by speech or by nonspeech conduct (the customary mode of analysis), the court instead developed a ‘non-exhaustive list of factors’ — including whether the restricted speech ‘takes place in the private sphere’ versus a ‘traditionally public space’ and whether the speech could be construed as ‘unpopular or dissenting.’ That standard conflicts with the standards of other circuits,” Jones’ lawyers argued.
Only the nation’s highest court can resolve an “intractable conflict,” according to Jones’ legal team.
It’s unclear whether the US Supreme Court will take the case. Nor can anyone say for certain whether the high court would agree that limits placed on Jones’ business amount to restrictions on speech or conduct.
Regardless of the North Carolina case’s ultimate resolution, Jones’ five-year legal battle offers an important lesson. Economic opportunities can disappear when government regulation closes doors once opened by innovation and technological advance.
Mitch Kokai is senior political analyst for the John Locke Foundation.
