Yoder v. Bowen: Sixth Circuit Leaves Drone-Hunting Ban Intact and Narrows the Speech-Inputs Doctrine—For Now

Introduction

In Mike Yoder v. Scott Bowen, the U.S. Court of Appeals for the Sixth Circuit denied rehearing en banc of a panel decision upholding Michigan’s prohibition on using drones “while taking game or fish.” The plaintiffs—Mike Yoder, Drone Deer Recovery LLC (DDR), and Jeremy Funke—challenge the law as applied to DDR’s business model of using drones to locate downed deer and posting their coordinates so hunters can retrieve their kill.

The panel opinion (Yoder v. Bowen, 146 F.4th 516 (6th Cir. 2025) (per curiam)) rejected three First Amendment theories: (1) that the statute is a content-based restriction on speech; (2) that it violates the “speech-inputs” doctrine (speech “in aid of” speech); and (3) that it improperly restricts inherently expressive conduct. Applying intermediate scrutiny, the panel concluded that the statute passed constitutional muster.

The full court denied rehearing en banc without a vote; no judge requested one. But Judge John K. Bush issued a published Statement respecting the denial. His Statement is not a holding, yet it is a notable, candid exploration of the elusive “speech-inputs” doctrine, raising concerns that the panel’s rationale underprotects the First Amendment when government restricts the means of creating speech. He warns of potential conflict with emerging Ninth and Fourth Circuit case law and invites Supreme Court clarification.

Summary of the Opinion

The court issued a short order: the petition for rehearing en banc was denied because the panel already fully considered the issues, and no judge asked for a vote on rehearing. That leaves the panel’s per curiam decision intact: Michigan’s drone-use prohibition in the context of taking game or fish survives intermediate scrutiny and does not violate the First Amendment under the theories plaintiffs advanced.

Judge Bush’s Statement—accompanying the denial—expresses significant doubts about the panel’s treatment of the “speech-inputs” doctrine. Drawing on Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), he explains that when the government restricts the tools used to create speech, courts should apply “heightened scrutiny,” potentially more demanding than O’Brien’s intermediate scrutiny. He questions the panel’s conclusion that drones are not “speech inputs,” its apparent narrowing of the doctrine to “core political speech,” and its decision to apply intermediate scrutiny anyway after disclaiming that drones are speech inputs. He also suggests the Michigan statute may be content based in effect, because it allows drones to gather and convey some information (e.g., trails, tree counts) but not the location of felled game.

Even so, Judge Bush concurs in the denial of rehearing. He reasons that Sorrell’s standard of review is notoriously opaque—variously read as strict scrutiny, intermediate scrutiny, or Central Hudson’s commercial speech test—so this case is not an ideal vehicle for en banc correction. He urges the Supreme Court to clarify the speech-inputs doctrine to prevent erosion of First Amendment protection for journalists, academics, and other speakers who rely on technology to gather information.

Analysis

Precedents Cited and How They Shaped the Decision

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011). Judge Bush anchors his critique in Sorrell, where Vermont restricted sale and use of prescriber-identifying data. The Court described this as a restriction on “speech in aid of” speech and applied “heightened” scrutiny. Sorrell recognized content- and speaker-based features but ultimately evaluated the law through a commercial speech lens (Central Hudson), which has fueled enduring uncertainty about the precise standard. Bush reads Sorrell to mean that limiting the means to create speech triggers more rigorous review than O’Brien’s incidental-restriction framework.
United States v. O’Brien, 391 U.S. 367 (1968). O’Brien provides intermediate scrutiny for content-neutral regulations of conduct that incidentally burden expression. The panel used intermediate scrutiny—implicitly O’Brien—to uphold Michigan’s drone-use prohibition. Bush questions whether O’Brien is enough when the challenged law allegedly disables the speech-creation process itself.
Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). These cases supply the four-step framework for commercial speech regulation and highlight the distinction between Central Hudson and strict/intermediate scrutiny. Bush notes that Sorrell’s pivot into Central Hudson makes its “heightened scrutiny” label especially murky.
Lichtenstein v. Hargett, 83 F.4th 575 (6th Cir. 2023). The Sixth Circuit recognized “speech inputs” as a cognizable First Amendment concern. Bush stresses that Lichtenstein did not cabin the doctrine to political speech, undermining the panel’s suggestion that only core political speech merits speech-inputs protection.
Western Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017). The Tenth Circuit described the doctrine as protecting the “creation” of speech, signaling cross-circuit recognition that data-gathering steps can be First Amendment-protected.
People for the Ethical Treatment of Animals, Inc. v. N. Carolina Farm Bureau Fed’n, Inc., 60 F.4th 815 (4th Cir.), cert. denied, 144 S. Ct. 325 (2023). The Fourth Circuit held “ag-gag” provisions restricting undercover recordings could violate the First Amendment by blocking speech creation. Bush views this as supportive of a broader speech-inputs principle extending beyond expressly political speech.
Garcia v. County of Alameda, No. 24-6814, 2025 WL 2536693 (9th Cir. Sept. 4, 2025). The Ninth Circuit struck down an ordinance that barred “observing” sideshows, reasoning that it inhibited “the process of creating” pure speech (i.e., recording). Bush cites Garcia to show that forbidding observation can be an unconstitutional restriction on a speech input.
Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788, 797 (1985). If the regulated activity isn’t protected speech (or within the First Amendment’s ambit), a court “need go no further.” Bush points out a conceptual tension: the panel said drones are not speech inputs, yet proceeded to apply First Amendment scrutiny.
Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2302 (2025), and United States v. Skrmetti, 145 S. Ct. 1816, 1828–29 (2025). Cited to underscore that content-based laws generally trigger strict scrutiny (Paxton) and that courts sometimes equate “heightened” scrutiny with intermediate scrutiny (Skrmetti)—illustrating the doctrinal uncertainty Sorrell has generated. (These characterizations are as described by Judge Bush.)
Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Recognizes that newsgathering has First Amendment significance. Bush invokes Branzburg to caution against doctrines that would unduly limit journalists’ ability to gather information.
The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), and Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). Emphasize robust First Amendment protection for journalism and academic freedom—domains that, in Bush’s view, would be vulnerable if governments could curtail the technologies of speech creation with only O’Brien-level review.
Mallory v. Norfolk Southern Railway Co., 600 U.S. 122, 136 (2023). Courts of appeals are bound by Supreme Court precedent; the opacity of Sorrell’s standard is a reason to await Supreme Court guidance rather than rehear en banc.
Animal Legal Defense Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018). Referenced as an example of political speech in the animal-rights context; Bush notes the Michigan drone ban would also constrain such speech, undercutting the panel’s political/non-political distinction.

The Court’s Legal Reasoning

The Sixth Circuit’s order itself is procedural: it denies rehearing en banc because the panel already addressed the issues, and no judge sought a vote. The practical effect is to preserve the panel’s constitutional analysis, which treated the Michigan statute as a permissible regulation of conduct with incidental effects on speech. Applying intermediate scrutiny, the panel determined that the law survives review.

Judge Bush’s Statement does not alter the result but critiques the panel’s path, focusing on three core concerns:

Misapprehending the speech-inputs doctrine. Bush argues that Sorrell stands for the proposition that restricting the tools or processes used to create speech triggers “heightened scrutiny.” He likens drones here to “pens and paper” for writers: by preventing DDR from using drones to generate the critical information that enables its speech to hunters (the location of downed game), the statute restricts speech creation, potentially meriting more rigorous review than O’Brien.
Improperly limiting the doctrine to political speech. The panel, as characterized by Bush, suggested that speech inputs warrant protection mainly for core political speech. Bush counters that Sorrell—about pharmaceutical marketing data, hardly political—demonstrates the doctrine’s reach beyond politics. Lichtenstein likewise does not confine speech inputs to political contexts.
Ignoring content-based features of the statute’s operation. Bush contends the Michigan law is functionally content based: it permits drones to capture and disseminate information generally (trees, trails) but forbids their use to generate and convey information about felled game. In his view, that linkage between the tool (drone) and the content it produces calls for a Sorrell-type “heightened” review rather than O’Brien.

Bush also identifies a doctrinal tension: if drones are not speech inputs, then, per Cornelius, there is arguably no First Amendment trigger and “a court need go no further.” Yet the panel nevertheless applied intermediate scrutiny—implicitly acknowledging a First Amendment interest—without squarely identifying the protected component. That inconsistency, he suggests, clouds the doctrinal foundation of the result.

Finally, Bush acknowledges Sorrell’s analytic instability: it gestures toward strict scrutiny (content-based law), uses the phrase “heightened scrutiny,” and then resolves the case under Central Hudson’s commercial speech test. Given this confusion, he does not view this case as a suitable vehicle for en banc correction and instead invites Supreme Court clarification.

Doctrinal Fault Lines and Potential Circuit Split

The Statement flags an emerging tension with other circuits:

Ninth Circuit (Garcia v. County of Alameda). An ordinance penalizing mere observation of sideshows was struck down as impermissibly inhibiting “the process of creating a form of pure speech,” namely recording. That approach treats observation as a protected precursor to speech. If observation at a sideshow is a protected input, Bush suggests, observing wildlife via drone to create speech (posting coordinates) should also count.
Fourth Circuit (PETA v. N.C. Farm Bureau). The court recognized that restrictions on undercover access and recording at agricultural facilities can unconstitutionally impede speech creation. Again, the focus is on the steps that produce speech, not merely the end expression.

The Sixth Circuit’s panel opinion, by downplaying the speech-inputs doctrine outside of politics and applying O’Brien, may thus be in tension with these approaches. If unaddressed, that divergence could ripen into a circuit split warranting Supreme Court intervention.

Practical and Prospective Impact

Immediate effect within the Sixth Circuit. The panel’s decision stands: Michigan’s ban on using drones “while taking game or fish” is constitutional as applied to DDR’s model. Regulators in Kentucky, Michigan, Ohio, and Tennessee may read this as support for technology-specific restrictions in regulated domains when framed as conduct rules with incidental speech effects.
Regulation of information-gathering technologies. The Statement warns that, if O’Brien governs whenever the state curtails tools of speech creation (drones, recorders, sensors), governments could inhibit journalism and research with relatively forgiving review. The hypotheticals offered—bans on recording clinical interviews or on audio/video recording of non-political journalism—show how such laws could stifle speech creation while nominally leaving “pen-and-paper” alternatives.
Content-based vs. content-neutral framing. How a statute is characterized matters. If a law is deemed content neutral (a hunting conduct rule), O’Brien controls. If, as Bush suggests, its operation turns on the content produced (coordinates of felled game vs. other data), strict or “heightened” scrutiny could apply under Sorrell. Future litigants will likely press the content-based characterization to avoid O’Brien.
Commercial and non-political speech. Bush’s Statement underscores that speech-inputs protection is not limited to political speech. That matters for businesses, journalists, and academics whose speech is commercial or non-political but still constitutionally significant. The Sixth Circuit’s panel analysis may chill such claims unless and until clarified.
Supreme Court review on the horizon? With the Ninth and Fourth Circuits recognizing robust protection for speech creation and the Sixth potentially narrowing it, the conditions for high-court review are strengthening. Bush explicitly calls for Supreme Court guidance to reconcile Sorrell’s “heightened scrutiny” with O’Brien and Central Hudson.

Complex Concepts Simplified

As-applied vs. facial challenge: An as-applied challenge targets how a law operates on a particular plaintiff or set of facts. A facial challenge argues the law is unconstitutional in all or most applications.
Speech-inputs doctrine (speech “in aid of” speech): The First Amendment protects not just final expression but sometimes the steps needed to create it—like gathering data, observing events, or using tools (e.g., cameras, recorders). Sorrell is a key touchstone because it treated restrictions on access to information used for marketing as constitutionally significant.
O’Brien intermediate scrutiny: For content-neutral laws regulating conduct with incidental effects on expression, courts typically ask whether the law (1) is within the government’s power; (2) furthers an important or substantial interest; (3) that interest is unrelated to suppressing expression; and (4) the incidental restriction on First Amendment freedoms is no greater than essential to that interest.
Strict vs. intermediate vs. Central Hudson scrutiny: Content-based speech restrictions presumptively trigger strict scrutiny (government must use the least restrictive means to serve a compelling interest). Content-neutral conduct regulations receive intermediate scrutiny (O’Brien). Commercial speech limits are analyzed under Central Hudson’s four-part test, a different framework; Sorrell’s interplay with Central Hudson fuels uncertainty about what “heightened scrutiny” means.
Content-based and speaker-based restrictions: Laws that prefer or disfavor speech based on its subject matter, message, or speaker are usually treated with skepticism and strict scrutiny. Bush suggests Michigan’s law, in practice, disfavors a particular category of information generated by drones (location of felled game) compared with other drone-generated information, raising content-based concerns.
Newsgathering rights: While not absolute, newsgathering is recognized as important under the First Amendment (Branzburg). Restrictions on recording and observation can burden the creation of speech, triggering speech-inputs concerns.
En banc rehearing and statements respecting denial: Rehearing en banc allows a full appellate court to reconsider a panel decision. A statement respecting denial—like Judge Bush’s—is not binding precedent but can be persuasive and often highlights unresolved legal issues.

Conclusion

The Sixth Circuit’s denial of rehearing en banc in Yoder v. Bowen leaves intact a panel ruling that Michigan’s prohibition on using drones while taking game or fish survives intermediate scrutiny and does not violate the First Amendment as applied to DDR’s business. But Judge Bush’s published Statement underscores a pivotal and unsettled question in First Amendment law: when does limiting the means of creating speech trigger “heightened scrutiny,” and what exactly does that scrutiny entail?

Bush’s analysis highlights three fault lines. First, the speech-inputs doctrine, as articulated in Sorrell, appears to extend beyond core political speech and may call for more rigorous review than O’Brien when the government curtails the tools of expression. Second, the Michigan statute may have content-based features in operation, potentially implicating stricter scrutiny than the panel applied. Third, the Sixth Circuit’s approach may be difficult to reconcile with the Ninth and Fourth Circuits’ recent recognition that observing and recording—quintessential speech-creation steps—are protected.

For now, within the Sixth Circuit, regulators have some latitude to limit technology used in regulated activities if framed as conduct rules and if the laws survive intermediate scrutiny. But the Statement’s warning is clear: underprotecting the creation of speech risks eroding First Amendment safeguards for journalists, academics, and others whose work depends on modern information-gathering tools. The court’s decision to forgo en banc review reflects Sorrell’s doctrinal ambiguity, not comfort with the status quo. All eyes now turn to the Supreme Court for a definitive articulation of the speech-inputs doctrine—what triggers it, how broadly it reaches, and which level of scrutiny it commands.