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.

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….

UPDATE [Nov. 16, 2022]: The government has stipulated to an injunction against the challenged provisions.