Drone Use for Wildlife Recovery Receives Only Intermediate-Scrutiny Protection: The Sixth Circuit’s New Framework in Yoder v. Bowen

Introduction

In Mike Yoder; Drone Deer Recovery LLC; and Jeremy Funke v. Scott Bowen, the United States Court of Appeals for the Sixth Circuit confronted a modern First Amendment question at the intersection of drone technology, hunting regulations, and free speech doctrine. The plaintiffs—an Ohio-based drone company, its founder, and a Michigan hunter—challenge Michigan’s 2015 “Drone Statute,” which prohibits using unmanned aerial vehicles to “take” game. They claim the law abridges their right to create and share geo-location data for downed deer.

While the panel (Cole, White, Mathis, JJ.) agrees that plaintiffs have Article III standing, it concludes—over a concurrence by Judge Mathis—that the complaint fails as a matter of law. The court holds that:

The Michigan Drone Statute is content-neutral;
Operating a drone to locate game is neither “core” speech, a “speech input,” nor inherently expressive conduct; and
Consequently, the ban is judged under O’Brien intermediate scrutiny, which it survives.

The decision thus establishes a precedent for analyzing drone-related information gathering: content-neutral hunting or conservation regulations that incidentally burden information creation will be upheld if they reasonably advance a substantial governmental interest.

Summary of the Judgment

1. Standing – Applying Susan B. Anthony List, the panel finds plaintiffs plausibly alleged: (i) an intent to operate in Michigan; (ii) speech-related conduct (creation and dissemination of location data); (iii) statutory proscription; and (iv) a “credible threat” of enforcement under the four-factor McKay test. Thus, Rule 12(b)(1) dismissal was improper.
2. Merits – On de novo review of the Rule 12(b)(6) dismissal, the court:

Rejects plaintiffs’ view that the Drone Statute is content-based;
Limits the Sixth Circuit’s own “speech-inputs” language from Lichtenstein to core political expression; and
Declares drone flight non-expressive and therefore subject only to O’Brien intermediate scrutiny, which the statute passes because it reasonably furthers Michigan’s conservation and fair-chase interests.

Accordingly, the court affirms dismissal for failure to state a claim. Judge Mathis concurs in the judgment but would have denied standing.

Analysis

Precedents Cited and Their Influence

Susan B. Anthony List v. Driehaus – Provides the four-part pre-enforcement standing formula; adopted to find injury-in-fact.
Lujan, Spokeo, TransUnion – Supply Article III injury, traceability, and redressability standards.
McKay v. Federspiel & progeny – Articulate “credible threat” factors; deployed to weigh standing.
Reed v. Town of Gilbert, Ward v. Rock Against Racism – Distinguish content-based vs. content-neutral laws; key to avoiding strict scrutiny.
United States v. O’Brien, Turner Broadcasting, Clark v. CCNV – Formulate intermediate scrutiny; directly applied to uphold the Drone Statute.
Lichtenstein v. Hargett – Sixth Circuit’s recent “speech-inputs” discussion; limited here to political-speech contexts.
National Press Photographers Ass’n v. McCraw (5th Cir. 2024) – Sister-circuit authority on drone photography; cited approvingly for treating drone operation as non-expressive.

Legal Reasoning

Separability of Conduct & Speech – The panel rejects the district court’s clean division between “flying” and “communicating,” but ultimately finds the combined activity still centers on conduct, not message.
Content Neutrality – Because the statute applies irrespective of the information gathered (hunters, animal-rights activists, or hobbyists are equally covered), it regulates the means, not the message. Legislative history confirms the goal was fair chase, not idea suppression.
No “Speech Input” Protection – Unlike money (political contributions) or paid petition circulators, drones are not indispensable to traditional political expression; therefore, Lichtenstein does not trigger strict scrutiny.
No Inherently Expressive Conduct – Following Rumsfeld and Johnson, drone flight lacks a “particularized message” understood by observers, so it garners no symbolic-speech status.
Intermediate Scrutiny Applied
- Michigan’s constitutional/ statutory mandate to conserve wildlife and preserve “fair-chase” hunting is “important & substantial.”
- The interest is unrelated to expression; it targets methods of taking game.
- The prohibition is no broader than necessary; an exception for drone tracking would undermine enforcement and could give unfair technological advantage.

Impact on Future Litigation and Policy

Drone Regulation – States may restrict drone use in hunting, surveillance, or critical-infrastructure contexts without triggering strict scrutiny if the restrictions are framed as conduct regulations and are content neutral.
First Amendment Scope – The ruling narrows any expansive reading of “speech inputs,” signaling courts will scrutinize whether technology is truly indispensable to expressive content before elevating the standard of review.
Standing Doctrine – Even though plaintiffs ultimately lost, the panel’s generous view of “credible threat” may ease access to pre-enforcement review in future speech cases—though the concurrence urges caution.
Conservation Law – Agencies can continue to advance wildlife-management objectives without fear that modern data-gathering tools automatically gain full First Amendment protection.

Complex Concepts Simplified

As-Applied vs. Facial Challenge: An as-applied challenge attacks a statute’s application to the challenger’s specific conduct, whereas a facial challenge asserts the law is invalid in all its applications.
Content-Based vs. Content-Neutral: A law is content-based if its enforcement depends on what is being said; it is content-neutral if it regulates how, when, or where speech occurs regardless of the message.
Intermediate Scrutiny (O’Brien Test): The government must show (1) constitutional authority, (2) an important or substantial interest, (3) interest unrelated to expression, and (4) the regulation imposes no greater burden on speech than essential.
McKay “Credible Threat” Factors: Courts evaluate past enforcement history, warning letters, ease-of-enforcement features, and whether officials disavow prosecution to decide if a plaintiff reasonably fears enforcement.
“Speech Inputs”: Resources (money, ink, paid signature gatherers) intrinsically tied to producing core speech. The court limits the doctrine to avoid automatic strict scrutiny for every tool that aids information gathering.

Conclusion

Yoder v. Bowen is the first published Sixth Circuit opinion to squarely address how the First Amendment applies to drone-assisted information creation. By affirming dismissal on intermediate-scrutiny grounds—while also recognizing standing—the court sketches a balanced blueprint: technological conduct that incidentally produces information does not automatically obtain full First Amendment immunity where a state advances substantial, content-neutral objectives. Legislatures now possess clearer guidance for drafting wildlife and public-safety regulations in the drone era, and litigants have a clarified roadmap for pre-enforcement standing. The ruling thus anchors a contemporary doctrinal development in both First Amendment and conservation law.