First Amendment Challenge to Restrictions on Use of Falcons in Videos and Commercials

A federal court has allowed the case to go forward, and is considering whether to preliminarily enjoin the restrictions.

|The Volokh Conspiracy |

From Stavridanoudakis v. U.S. Dep't of Fish & Wildlife, decided Friday by Judge Lawrence J. O'Neill (E.D. Cal.):

The Migratory Bird Treaty Act ("MBTA") codifies the protections of migratory birds as outlined in various conventions between the United States and four foreign countries: Canada, Mexico, Japan, and Russia. The MBTA only applies to migratory birds native to the United States, which includes several types of Falconiformes (vultures, kites, eagles, hawks, caracaras, and falcons) and Strigiformes (owls). The MBTA authorizes the Secretary of the Interior ("Secretary") to adopt suitable regulations to determine, inter alia, when, and to what extent, it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs.

Pursuant to the authority of the MBTA, the Secretary promulgated regulations to regulate falconry standards and falconry permitting …. 50 C.F.R. § 21.29(f)(9)(i) prohibits photographing or filming falconry raptors for "movies commercials, or in other commercial ventures." 50 C.F.R. § 21.29(f)(9)(ii) prohibits falconers from photographing or filming their birds for "advertisements; as a representation of any business, company, corporation, or other organization; or for promotion or endorsement of any products, merchandise, goods, services, meetings, or fairs"—unless the promotion or endorsement is of "a nonprofit falconry organization or association" or "products or endeavors related to falconry."

50 C.F.R. § 21.29(f)(8)(v) dictates that during conservation education programs, falconers "must provide information about the biology, ecological roles, and conservation needs of raptors  …  although not all of these topics must be addressed in every presentation."  …

In Count III of the FAC, Plaintiffs claim that 50 C.F.R. § 21.29(f)(9)(i) is a content-based restriction that violates the First Amendment. Section 21.29(f)(9)(i) states "You may not use raptors to make movies, commercials, or in other commercial ventures that are not related to falconry."

In Count IV, Plaintiffs contend that 50 C.F.R. § 21.29(f)(9)(ii) is an unconstitutional restriction on commercial speech. ECF No. 16 at 15-16. 50 C.F.R. § 21.29(f)(9)(ii) states that falconers may not use their raptors for "commercial entertainment; for advertisements; as representation of any business … or for promotion … of any products [or] services … with the following exceptions: (A) … to promote … a nonprofit falconry organization … [and] (B) … to promote … products … related to falconry …."

In Count V, Plaintiffs challenge 50 C.F.R. § 21.29(f)(8)(v) which requires falconers giving conservation education programs to provide "information about the biology, ecological roles, and conservation needs of raptors."

In Count VI, Plaintiffs challenge the prohibitions on charging fees that exceed the amount required to recoup costs under 50 C.F.R. § 21.20(f)(8)(iv)….

The Supreme Court has recognized that various forms of entertainment and visual expression are purely expressive activities—including movies. Therefore, 50 C.F.R. § 21.29(f)(9)(i)'s restrictions on movies and § 21.29(f)(9)(ii)'s restriction on commercial entertainment go beyond restricting expressive conduct and restrict purely expressive activity.

The restriction compelling the content of falconers' conservation education program under 50 C.F.R. § 21.29(f)(8)(v) is clearly a content-based restriction because it explicitly restricts the topic of the speech that can be discussed: "you must provide information about the biology, ecological roles, and conservation needs of raptors …." … The regulation unequivocally discriminates based on the topic of the educational presentation.

"A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991). 50 C.F.R. § 21.29(f)(8)(iv) limits the fee that falconers can charge when giving a conservation education program. Therefore, this regulation imposes a financial burden on falconers depending on the content of their presentation….

The Federal Defendants do not argue in the motion to dismiss that the regulations restrict excludable speech (i.e. obscenity), or that the regulations are valid time, place, and manner restrictions. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is inconsequential that falconers could merely use nonnative raptors to engage in the prohibited activities. Because the restrictions are content based, they are not subject to reasonable time, place, and manner restrictions. Id. (the government may impose reasonable time, place, and manner restrictions, provided the restrictions are justified without reference to the content of the regulated speech). The Federal Defendants provide no such support that the restriction on use of native raptors is no less a restriction on falconers' speech.

In addition, the Federal Defendants make no argument in the motion to dismiss that the content-based restrictions pass strict scrutiny. Thus, the Federal Defendants' motion to dismiss Counts III, IV, V, and VI on the grounds that the regulations do not restrict protected speech is DENIED….

Next, the Federal Defendants contend that, assuming the speech restricted by the regulations is protected speech, the regulations do not violate the First Amendment because they are permissible regulations on commercial speech. {As discussed below, even assuming the speech regulations are aimed at only commercial speech, the Court finds that Defendants are not entitled to dismissal. In light of that finding and because the First Amendment test for commercial speech is less stringent, at this stage, the Court is not required to determine definitively the commercial or noncommercial nature of speech being restricted.} …

In the present case, the limits on "commercials," under §§ 21.29(f)(9)(i) and "advertisements," under subsection (ii), standing alone, are restrictions on commercial speech. However, restrictions on film (movies), photography, or on commercial entertainment are not restrictions on commercial speech. See ETW v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003) (holding "prints," or copies, of paintings were not commercial speech because they did not propose a commercial transaction); see also Anderson, 621 F.3d at 1060 (recognizing various forms of entertainment and visual expression—including movies—are purely expressive activities). Thus, §§ 21.29(f)(9)(i) & (ii) place restrictions on commercial speech— advertisements, commercials, and promoting a business or product—and on non-commercial, fully-protected speech….

The Court evaluates restrictions on commercial speech using the four-part test in Central Hudson: "(1) if the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny, (2) [t]he State must assert a substantial interest to be achieved by restrictions on commercial speech; (3) the restriction must directly advance the state interest involved; and (4) it must not be more extensive than is necessary to serve that interest." …

Plaintiffs argue that Defendants cannot make the showing on the fourth prong that the restrictions fit the government's interest at the motion to dismiss stage. Where the challenged regulation is a content-based restriction subject to strict scrutiny, the issue of whether the challenged restrictions adequately fit the government interest was a question for summary judgment or trial. Frudden v. Pilling, 742 F.3d 1199, 1207-08 (9th Cir. 2014). The summary judgment process requires defendants to show a compelling government interest and permits plaintiffs an opportunity to present countervailing evidence.

The Court acknowledges Defendants have a substantial interest in protecting native raptors. In arguing that the regulations meet the fourth prong as a matter of law, the Federal Defendants claim that "the regulations are directed specifically at commercial endeavors, with a limited carve-out for falconry related undertakings." ECF No. 24-1 at 19. However, in light of Frudden, the present record is not developed sufficiently. Accordingly, the Federal Defendants' motion to dismiss the challenges to 50 C.F.R. § 21.29(f)(9)(i) and (ii) (Counts III & IV) on the theory that they are permissible commercial speech restrictions is DENIED….

In Count VI (Second Count), Plaintiffs claim that the California regulation, 14 C.C.R. § 670(h)(13)(A), violates the First and Fourteenth Amendments in the same way that the federal regulations do. This regulation states: "Education and Exhibiting. A licensee may use raptors in his or her possession for training purposes, education, field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds. Any fees charged, compensation, or pay received during the use of falconry raptors for these purposes may not exceed the amount required to recover costs."

Like the federal regulations in Counts III, IV, V, and VI, this regulation is also a restriction of expressive activity based on content. It demands that when using the raptors in presentations or media, the content must be related to falconry. Section 670(h)(13)(A) also imposes a restriction on compensation that corresponds to the federal regulations. The State Defendants argue that § 670(h)(13)(A) does not ban speech. For the same reasons stated above that the federal regulations are content-based restrictions on expressive activity, the Court rejects this argument. Because the regulations are content based, they are presumptively unreasonable and subject to strict scrutiny review.

Next, the State Defendants contend that should falconers desire to use raptors for exhibiting or commercial uses not authorized in § 670(h)(13)(A), they may obtain the appropriate permit to engage in such activity. It is somewhat unclear what State Defendants are pecking at. The Court has reviewed the falconry regulations raised by the parties. It is possible there is a separate regulatory regime that supports State Defendants' argument that falconers can obtain a separate permit to engage in the prohibited activities. State Defendants have not identified any such alternative regulations or laws.

The language of the regulations does not support the State Defendant's position.14 C.C.R. § 670(h)(13)(A) provides "A licensee may use raptors in his or her possession for training purposes, education field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds." By this provision's plain language, it does not appear that a falconer could seek a permit to give a talk with the raptor that is unrelated to the practice of falconry. For instance, even with an exhibiting permit under 14 C.C.R. § 671.1(b)(6), a falconer could not give a presentation using her raptor about her political or religious views, or throw a Harry Potter party for a relative, because these topics are not related to the practice of falconry or the biology, ecology, or conservation of raptors. Furthermore, it is notable that the provision requires the licensee to possess the "appropriate valid federal permits." Thus, the Court rejects the State Defendants' argument that Count VI (Second Count) fails to state a claim for relief on the theory Plaintiffs could simply get a separate federal permit….

[T]he strength of the government's interest for the challenged regulations and the fit of those interests to the speech restrictions at issue are material to the Court's preliminary injunction analysis for all three categories of the First Amendment challenges.

The Court tentatively finds that the government has a strong interest in protecting the native raptor species, but because the briefing has failed to sufficiently discuss any aspect of fit, and because the Court is responsible for evaluating how a preliminary injunction would impact the public interest, the Court must hear from the Federal and State Defendants before it takes any action.

For example, it is unclear from the present record whether prohibiting falconers from earning money for educational presentations is a narrowly-tailored solution to combat a marketplace for the protected birds. Federal and State Defendants must discuss why the restrictions on falconers' ability to give presentations and to film and photograph their birds meet strict scrutiny.

As with analyzing the restrictions on falconers' ability to give presentations and film their birds, the Court will need supplemental briefing to thoroughly analyze whether the compensation restrictions are narrowly tailored to achieve the government's interest. Federal and State Defendants must discuss why the compensation restrictions meets strict scrutiny.

As to the third category relating to commercial speech, the Federal Defendants contend that the regulations affecting commercial transactions of falconers are necessary to prevent a market for the protected birds from developing. Federal Defendants argue that lifting the regulations would undermine the goal of falconry raptor preservation and cause detrimental effects on the protected species….

Under Central Hudson, the restriction must not be more extensive than necessary to serve the government interest. The test is sometimes phrased as requiring a "reasonable fit" between the government's legitimate interests and the means it uses to serve those interests, or that the government narrowly tailors the means to meet its objective….

At present, the Federal and State Defendants' briefing does not explain how the regulations are not more extensive than necessary to serve an important state interest…. The State Defendants similarly do not address how the restrictions on commercial speech are not more extensive than necessary to promote the health and welfare of raptors. Therefore, on the present record, the Court cannot determine if the restrictions on commercial speech are not more extensive than necessary to serve these interests.

The Court will order the Federal and State Defendants to submit supplemental briefing with respect to these narrow issues. The Defendants should discuss the nature of the government interest involved and how the three categories of speech restrictions (falconers' presentations and media, compensation, and commercial speech) are drawn to meet such interest. Lastly, Defendants should provide an analysis for the third and fourth prongs of the Winter test: the balance of equities and the public interest. Plaintiffs will then have an opportunity to respond….

The State and Federal Defendants are ordered to file supplemental briefs addressing the state interest(s) in the regulations challenged under the First Amendment and how those speech restrictions are tailored to achieve those interests, and relatedly, the balance of equities and the public interest prongs under Winter…. The Defendants shall have 30 days from the date of this order to file the briefs. Toucan, of course, play at this game, so Plaintiffs will then have 30 days from the date they are served with both State Defendants' and Federal Defendants' briefs to file a responsive brief….

 

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  1. So the wackos that said they would go after the first amendment as soon as they felt they had a victory over the second were right?

    1. We haven’t even gotten to the point of “look at brain scan, this is damage, so government can ban certain thoughts!”

      Just wait for it.

      1. Where were you when Mr. Meese was trying to float this exact line of thought?

      2. “We haven’t even gotten to the point of “look at brain scan, this is damage, so government can ban certain thoughts!””

        Not quite, but Breyer has claimed that speech that he disagrees with originates in a part of the brain unprotected by the first amendment.

  2. If you want to film a live murder, you don’t get a first amendment challenge to the murder statutes. The state can prohibit an illegal act independently from whether you record it or not. This is a general rule. The free press and free speeches of the first amendment don’t even, generally speaking, give you an out from illegal parking.

    So government could craft a general rule against mistreating raptors, training them to do tricks or particular acts, interfering with them, etc., which would apply equally to moviemakers and advertisers as others.

    But I agree that if raptors are simply being filmed In the wild, government can’t say that they can be filmed for some purposes and can’t be for other purposes. Doing so is regulating the content of the depiction, not the treatment of the bird.

    1. ReaderY, isn’t this about falconry? That may require considerable knowledge of wild birds, and their behavior and requirements, but it is not really about wild birds. It is about taking wild birds and making them captives, for which the practitioners must (I think) be licensed.

      Seems like this is a case where the court is demanding an explanation for why the restrictions meet scrutiny, and then after getting the explanation—to prevent a market for the birds from developing—the court is discounting the explanation to zero, apparently with the aim of demanding something else.

      I think your point that first amendment challenges do not supply an out from illegal conduct is a good one, and needs repeated emphasis. There seems to be a growing tendency to try to use Bill of Rights challenges to try to constrain other parts of the Constitution—as if those other parts must always give way to the 1A, or something. That can’t be right.

      1. “Seems like this is a case where the court is demanding an explanation for why the restrictions meet scrutiny, and then after getting the explanation”

        I think you are misreading what’s quoted from the decision.

        The level of scrutiny the judge is applying requires both a compelling interest and that the regulation be as narrowly tailored as possible to meeting that interest.

        As I read it, the judge accepted the stated compelling interest but goes on to state That the briefs by the state and federal defendants ignored the tailoring issue.

        He ordered additional briefing on the tailoring issue.

        1. The federal government has a compelling interest in meeting its treaty obligations…

          The issue that was skated over is that the first amendment doesn’t say that no law can be created that abridges freedom of yada yada yada. It says that Congress can’t do it. Well, Congress doesn’t make treaties (that task falls to the Executive, with advice and consent from half of Congress). I think that would be a particularly weaselly way around the 1A, but it shouldn’t be avoided completely.

          1. “The federal government has a compelling interest in meeting its treaty obligations…”

            Small problem. The federal government’s brief didn’t claim that as the compelling interest.

            1. The judge is not obligated to consider arguments the defendant didn’t make.

            2. Even the interest in meeting treaty obligations would be subject to narrow tailoring under strict scrutiny.

            “Well, Congress doesn’t make treaties (that task falls to the Executive, with advice and consent from half of Congress).”

            1. Yeah, but that argument only works on self implementing treaties. Most treaties, particularly most older treaties, aren’t self implementing.

            2 Considering that 1A has been incorporated against state governments, I don’t thing that argument will fly.

            1. “Small problem. The federal government’s brief didn’t claim that as the compelling interest.”

              No, that was me. See? It has my name right at the front of the comment where I said it.

              “2. Even the interest in meeting treaty obligations would be subject to narrow tailoring under strict scrutiny. ”

              Duh. Notice how I don’t claim otherwise? Oh, you didn’t? Well, now you know.

              “2 Considering that 1A has been incorporated against state governments, I don’t thing that argument will fly.”

              Gosh, and you point this out right after I said it was totally bulletproof. How embarrassing for me. You totally got me on that one.

  3. At first I thought this particular decision was noteworthy because of its implication for First Amendment jurisprudence, particularly regulation of commercial speech.

    Then I got to the terrible pun in the last paragraph and realized why it was really posted.

    Of course, toucans aren’t raptors, so I think it should have been, “The Court will review these briefs with hawk-like focus”.

    1. But “…what State Defendants are pecking at” also doesn’t apply to raptors.

      1. Your eagle eye spotted that pun, too!

      2. “But “…what State Defendants are pecking at” also doesn’t apply to raptors.”

        Depends on which raptors you’re talking about. I mean, technically, none of the government’s lawyers are raptors, but raptors can, and do, peck at things.

    2. A pity the court did not also mention the Free Speech Claws of the First Amendment . . . an opportunity lost, methinks.

    3. That wouldn’t work because it’s a play on two can play this game as he states that the plaintiffs will get a chance to reply to the additional briefing by the defendants.

  4. I have no bird in this flight (sorry!), but I cannot see any path to victory for the Government.

    1. Well, the government pays the judges, of course.

  5. The whole idea of “commercial speech” is a first amendment abomination anyway. Constitutionally, there’s just “speech”. And your 1st amendment rights don’t evaporate if money changes hands.

    1. “Commercial speech” is usually in the context of truthiness in advertising or other professional speech, and hence its existence as an edge case.

      This is flat out supression of speech for reasons that have nothing to do with the prevention of fraud.

    2. “And your 1st amendment rights don’t evaporate if money changes hands.”

      There are four justices on the Court that believe otherwise.

  6. It’s hard for me to understand what these regulations are supposed to accomplish.

    It can be made illegal to capture and hold endangered species, in fact I think it already is. But if somehow the animals are legally acquired or legally bred in captivity then what is the point of this regulation?

    Auburn University has had a series of captive Golden Eagles which are trained and perform at Auburn football games and other occasions. More recently they have acquired a Bald Eagle. These birds perform and are often photographed.

    Wouldn’t these activities run afoul of these regulations?

    1. From the quoted sections of the law, yes. In fact, it may be directly intended to stop Auburn’s performances. However, it also has the side-effect of banning any production using birds of prey in America.

      1. ” it also has the side-effect of banning any production using birds of prey in America.”

        No, it doesn’t. It bans commercial productions using (some specific) birds of prey. Organizations that run conservation programs, such as zoos, can still exhibit their birds in educational shows, even the birds that are covered by this reg, and so can other conservation groups.
        There’s one that runs at Dollywood.

  7. This seems such an obvious violation of free speech (IANAL!) that I wonder at the motion to dismiss by the government. (a) Does the government ever just cave in under obvious cases like this, say “Ooops, our bad, we’ll fix that right up”? (b) Is it standard legal process to always move to dismiss, no matter how obviously lousy your case is?

    1. ” (a) Does the government ever just cave in under obvious cases like this, say “Ooops, our bad, we’ll fix that right up”?”

      Yes. See, for example, Obama’s defense of the Defense of Marriage Act, or Trump’s defense of the Affordable Care Act. You can also see it in some state and local governments’ reactions to some lawsuits regarding school segregation.

  8. First, this is a treaty so we may be constrained as to how “loose” we can make the regs.

    Second, since this is for the protection of migratory birds, I can somewhat understand the need to protect their environments which are somewhat temporary due to their migratory nature – and therefore need somewhat stricter rules as far as access, etc.

    1. apedad, in general, I think protection for migratory birds is necessary because one nation’s management mistakes might affect other nations’ ability to protect their birds. That does not in itself mean migratory birds are more vulnerable than others, and indeed they may not be.

      Birds which depend on breeding sites in remote northern locations, for instance, may have survival advantages compared to those which must breed in areas being developed for human use. That does not mean that almost all birds are not under stress at present, and variously threatened. But it may mean that species which practice migration to breed enjoy some survival advantages compared to the others.

    2. I thought the Supremes had ruled several times that treaties can’t override the Constitution.

      1. The Supreme Court suggested otherwise in Missouri v. Holland, 252 U.S. 416 (1920), which also involved the Migratory Bird Treaty Act. I think it’s unlikely that this view would obtain 5 votes from the current Supreme Court, though.

        1. Missouri v. Holland was a 10th Amendment case, and the Court held that the treaty-making power of the federal government as granted by the Constitution defeated Missouri’s challenge. The other Amendments are of a different sort, and cannot be infringed by way of the government’s treaty-making power.

      2. “I thought the Supremes had ruled several times that treaties can’t override the Constitution.”

        Perhaps, but the text of the document itself doesn’t preclude other interpretations. This is what got Bush, Sr.’s anti-government twits all worried about the “one world government”, with the black helicopters and such.

        1. So we’re just gonna rely on practical politics and not constitutional protections to stop censorship because of a treaty?

          1. If you say so, I guess. What exactly are you mumbling about?

    3. While there is a treaty these are regulations issued to implement the treaty. I doubt the treaty has such specific language regarding falconry.

  9. Doesn’t the regulation exceed the scope of the enacted statute?
    > The MBTA authorizes the Secretary of the Interior (“Secretary”) to adopt suitable regulations to determine, inter alia, when, and to what extent, it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs.
    But this regulation determines the purpose, not the extent, to which “it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs.”

  10. I’m surprised that Defendants didn’t invoke the well know principle that when you photograph something, you steal a bit of its soul. Well, maybe not the Feds, but surely California?

  11. A federal court has allowed the falcon case to go forward, and is considering whether to preliminarily enjoin the falcon restrictions.

  12. This might really cut into Julio Jones’s endorsement deals.

  13. Sheesh, makes me wonder how many little backwaters of the CFR contain likely 1st amendment violations. If there are enough then some can be discovered in a relatively small sample. If so, take a somewhat larger sample, get a sample “rate” of violations, and multiply by the full size of the 180K page CFR. Might make a decent student project.

  14. The point of this regulation is to remove a revenue stream from owning falcons (and related avians), which reduces the interest in removing wild falcons from wilderness, and increases the likelihood that wild falcons will be left wild.

    1. Two words: Captive Breeding.

      So make regulations that restrict the taking of wild falcons for falconry. Goal achieved with no 1A issues.

      1. I don’t have any special knowledge about captive breeding of raptors, so this may be a bad question. But might the relatively small numbers of wild breeding pairs for some species mean their gene pools are vulnerable to escapes by captive-bred birds. How many escapes of a human-created hybrid would it take to notably alter the New England goshawk population, for instance?

        1. “But might the relatively small numbers of wild breeding pairs for some species mean their gene pools are vulnerable to escapes by captive-bred birds.”

          Only if the escapees are hybrids.

          And you are presuming without evidence that these captive breeding programs are deliberately producing hybrids. In point of fact, many of these programs sell to zoos which wouldn’t be interested in hybrids and some deliberately release birds to boost populations of endangered raptors.

          Also, I don’t know about raptors, but some hybrids occur naturally in the wild. Look up grolar bears.

          1. Matthew, your own posted list mentions breeders who make hybrids. I hope the folks deliberately releasing endangered raptors are doing so with expert guidance.

  15. Two words: Captive Breeding.

    So make regulations that restrict the taking of wild falcons for falconry. Goal achieved with no 1A issues.

    1. “Two words: Captive Breeding.”

      Not interested in your sex life. Stay on topic.

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