360 Virtual Drone Services LLC v. Andrew Ritter
This text of 102 F.4th 263 (360 Virtual Drone Services LLC v. Andrew Ritter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 1 of 29
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1472
360 VIRTUAL DRONE SERVICES LLC; MICHAEL JONES,
Plaintiffs – Appellants,
v.
ANDREW L. RITTER, in his official capacity as Executive Director of the North Carolina Board of Examiners for Engineers and Surveyors; JOHN M. LOGSDON, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; JONATHAN S. CARE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; DENNIS K. HOYLE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; TOYNIA E.S. GIBBS, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; VINOD K. GOEL, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CEDRIC D. FAIRBANKS, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; BRENDA L. MOORE, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CAROL SALLOUM, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; ANDREW G. ZOUTWELLE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:21−cv−00137−FL)
Argued: January 23, 2024 Decided: May 20, 2024
Before AGEE, WYNN, and THACKER, Circuit Judges. USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 2 of 29
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Samuel Bracken Gedge, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Douglas William Hanna, FITZGERALD HANNA & SULLIVAN, PLLC, Raleigh, North Carolina, for Appellees. ON BRIEF: David G. Guidry, GUIDRY LAW FIRM PLLC, Charlotte, North Carolina; James T. Knight II, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants.
2 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 3 of 29
WYNN, Circuit Judge:
Michael Jones and his wholly owned company, 360 Virtual Drone Services LLC
(“Plaintiffs”), would like to provide customers with aerial maps and 3D digital models
containing measurable data. But the North Carolina Board of Examiners for Engineers and
Surveyors (“Board”) has taken the position that doing so would constitute engaging in the
practice of land surveying without a license, in violation of the North Carolina Engineering
and Land Surveying Act (“Act”). Plaintiffs sued various members of the Board in their
official capacities, arguing that the restriction on their ability to offer these services without
first obtaining a surveyor’s license violates their First Amendment rights.
The district court granted summary judgment for Defendants. We conclude that the
Board has not violated Plaintiffs’ First Amendment rights and therefore affirm.
I.
The following facts are undisputed, except as noted.
A.
North Carolina regulates land surveying through the North Carolina Engineering
and Land Surveying Act. N.C. Gen. Stat. § 89C-1 to -2. The Act “declare[s]” “the practice
of land surveying” in North Carolina “to be subject to regulation in the public interest,”
specifically, “[i]n order to safeguard life, health, and property, and to promote the public
welfare.” Id. § 89C-2. The Board’s Rule 30(b)(6) witness explained that the Act effectuates
these purposes in part by assuring the public that “licensed work” is “going to be above
[the level of] incompetence, gross negligence, and misconduct” and by “establishing a
3 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 4 of 29
minimum level of competence” for licensure. J.A. 300–01. 1 The Act creates the Board “to
administer [its] provisions,” including by investigating violations of the surveyors’ rules of
professional conduct and taking disciplinary actions where they are violated. N.C. Gen.
Stat. § 89C-4; see id. § 89C-20 to -22.
Obtaining a surveyor’s license is a rigorous process. An applicant must (1) “be of
good character and reputation,” as established through “five character references . . . , three
of whom are professional land surveyors or individuals acceptable to the Board, with
personal knowledge of the applicant’s land surveying experience”; (2) “submit exhibits,
drawings, plats, or other tangible evidence of land surveying work executed by the
applicant under proper supervision and which the applicant has personally accomplished
or supervised”; (3) submit to an interview “if the Board determines it necessary”; and
(4) meet one of several different combinations of “education, technical, and land surveying
experience.” Id. § 89C-13(b), (b)(1a). For example, an individual who has completed a
high school diploma or its equivalent but who lacks an associate or bachelor-of-science
degree in surveying must demonstrate “a record satisfactory to the Board of nine years or
more of progressive practical experience under a practicing professional land surveyor”—
or seven years, plus the completion of “a Land Surveyor Apprenticeship”—and must pass
at least two examinations. Id. § 89C-13(b)(1a)(d)–(d1) (emphasis added).
Practicing land surveying without a license exposes an individual to civil and
criminal misdemeanor liability. Id. § 89C-23. The same is true for a “firm, partnership,
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 5 of 29
organization, association, corporation, or other entity using or employing the words . . .
‘land surveyor’ or ‘land surveying,’ or any modification or derivative of those words in its
name or form of business or activity.” Id.; see id. § 89C-24 (providing for the licensure of
corporations and business firms). The Act does, however, provide some exceptions to the
licensing requirement, such as that unlicensed individuals may “[e]ngag[e] in . . . land
surveying as an employee or assistant under the responsible charge of a . . . professional
land surveyor.” Id. § 89C-25(4). None of the Act’s exceptions are applicable here.
The Act defines the “[p]ractice of land surveying,” in relevant part, as “[p]roviding
professional services such as . . . mapping, assembling, and interpreting reliable scientific
measurements and information relative to the location, size, shape, or physical features of
the earth, improvements on the earth, the space above the earth, or any part of the earth,”
including where “the gathering of information for the providing of these services is
accomplished . . . by aerial photography, . . . and the utilization and development of these
facts and interpretations into an orderly survey map, plan, report, description, or project.”
Id. § 89C-3(7), (7)(a). The Act specifies that “[t]he practice of land surveying includes,”
among other things, “[l]ocating, relocating, establishing, laying out, or retracing any
property line, easement, or boundary of any tract of land;” “[d]etermining the configuration
or contour of the earth’s surface or the position of fixed objects on the earth’s surface by
Free access — add to your briefcase to read the full text and ask questions with AI
USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 1 of 29
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1472
360 VIRTUAL DRONE SERVICES LLC; MICHAEL JONES,
Plaintiffs – Appellants,
v.
ANDREW L. RITTER, in his official capacity as Executive Director of the North Carolina Board of Examiners for Engineers and Surveyors; JOHN M. LOGSDON, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; JONATHAN S. CARE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; DENNIS K. HOYLE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; TOYNIA E.S. GIBBS, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; VINOD K. GOEL, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CEDRIC D. FAIRBANKS, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; BRENDA L. MOORE, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; CAROL SALLOUM, in her official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors; ANDREW G. ZOUTWELLE, in his official capacity as member of the North Carolina Board of Examiners for Engineers and Surveyors,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:21−cv−00137−FL)
Argued: January 23, 2024 Decided: May 20, 2024
Before AGEE, WYNN, and THACKER, Circuit Judges. USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 2 of 29
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Samuel Bracken Gedge, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants. Douglas William Hanna, FITZGERALD HANNA & SULLIVAN, PLLC, Raleigh, North Carolina, for Appellees. ON BRIEF: David G. Guidry, GUIDRY LAW FIRM PLLC, Charlotte, North Carolina; James T. Knight II, INSTITUTE FOR JUSTICE, Arlington, Virginia, for Appellants.
2 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 3 of 29
WYNN, Circuit Judge:
Michael Jones and his wholly owned company, 360 Virtual Drone Services LLC
(“Plaintiffs”), would like to provide customers with aerial maps and 3D digital models
containing measurable data. But the North Carolina Board of Examiners for Engineers and
Surveyors (“Board”) has taken the position that doing so would constitute engaging in the
practice of land surveying without a license, in violation of the North Carolina Engineering
and Land Surveying Act (“Act”). Plaintiffs sued various members of the Board in their
official capacities, arguing that the restriction on their ability to offer these services without
first obtaining a surveyor’s license violates their First Amendment rights.
The district court granted summary judgment for Defendants. We conclude that the
Board has not violated Plaintiffs’ First Amendment rights and therefore affirm.
I.
The following facts are undisputed, except as noted.
A.
North Carolina regulates land surveying through the North Carolina Engineering
and Land Surveying Act. N.C. Gen. Stat. § 89C-1 to -2. The Act “declare[s]” “the practice
of land surveying” in North Carolina “to be subject to regulation in the public interest,”
specifically, “[i]n order to safeguard life, health, and property, and to promote the public
welfare.” Id. § 89C-2. The Board’s Rule 30(b)(6) witness explained that the Act effectuates
these purposes in part by assuring the public that “licensed work” is “going to be above
[the level of] incompetence, gross negligence, and misconduct” and by “establishing a
3 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 4 of 29
minimum level of competence” for licensure. J.A. 300–01. 1 The Act creates the Board “to
administer [its] provisions,” including by investigating violations of the surveyors’ rules of
professional conduct and taking disciplinary actions where they are violated. N.C. Gen.
Stat. § 89C-4; see id. § 89C-20 to -22.
Obtaining a surveyor’s license is a rigorous process. An applicant must (1) “be of
good character and reputation,” as established through “five character references . . . , three
of whom are professional land surveyors or individuals acceptable to the Board, with
personal knowledge of the applicant’s land surveying experience”; (2) “submit exhibits,
drawings, plats, or other tangible evidence of land surveying work executed by the
applicant under proper supervision and which the applicant has personally accomplished
or supervised”; (3) submit to an interview “if the Board determines it necessary”; and
(4) meet one of several different combinations of “education, technical, and land surveying
experience.” Id. § 89C-13(b), (b)(1a). For example, an individual who has completed a
high school diploma or its equivalent but who lacks an associate or bachelor-of-science
degree in surveying must demonstrate “a record satisfactory to the Board of nine years or
more of progressive practical experience under a practicing professional land surveyor”—
or seven years, plus the completion of “a Land Surveyor Apprenticeship”—and must pass
at least two examinations. Id. § 89C-13(b)(1a)(d)–(d1) (emphasis added).
Practicing land surveying without a license exposes an individual to civil and
criminal misdemeanor liability. Id. § 89C-23. The same is true for a “firm, partnership,
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 5 of 29
organization, association, corporation, or other entity using or employing the words . . .
‘land surveyor’ or ‘land surveying,’ or any modification or derivative of those words in its
name or form of business or activity.” Id.; see id. § 89C-24 (providing for the licensure of
corporations and business firms). The Act does, however, provide some exceptions to the
licensing requirement, such as that unlicensed individuals may “[e]ngag[e] in . . . land
surveying as an employee or assistant under the responsible charge of a . . . professional
land surveyor.” Id. § 89C-25(4). None of the Act’s exceptions are applicable here.
The Act defines the “[p]ractice of land surveying,” in relevant part, as “[p]roviding
professional services such as . . . mapping, assembling, and interpreting reliable scientific
measurements and information relative to the location, size, shape, or physical features of
the earth, improvements on the earth, the space above the earth, or any part of the earth,”
including where “the gathering of information for the providing of these services is
accomplished . . . by aerial photography, . . . and the utilization and development of these
facts and interpretations into an orderly survey map, plan, report, description, or project.”
Id. § 89C-3(7), (7)(a). The Act specifies that “[t]he practice of land surveying includes,”
among other things, “[l]ocating, relocating, establishing, laying out, or retracing any
property line, easement, or boundary of any tract of land;” “[d]etermining the configuration
or contour of the earth’s surface or the position of fixed objects on the earth’s surface by
measuring lines and angles and applying the principles of mathematics or
photogrammetry;” and “[c]reating, preparing, or modifying electronic or computerized
data, including land information systems and geographic information systems relative to
5 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 6 of 29
the performance of the practice of land surveying.” Id. § 89C-3(7)(a)(1), (5), (7) (emphasis
added).
At issue here is the regulation of photogrammetry, which “is the art, science, and
technology of obtaining reliable information about physical objects and the environment
through processes of recording, measuring, and interpreting photographic images and
patterns of recorded radiant electromagnetic energy and other phenomena.” J.A. 277. Such
images can be collected by drone using visual cameras, infrared sensors, and Light
Detection and Ranging (“LiDAR”) sensors, depending on the data needed. J.A. 69; see J.A.
78–79 (noting that infrared sensors can collect images that, when stitched together,
“allow[] a client to see a comprehensive map of the temperature of various objects across
a large area” and that drones can be used to create 3D or topographical maps using visual
images or LiDAR).
Photogrammetry’s work product can include orthomosaic maps and 3D models.
Both forms of work product provide measurable, image-based data, but an orthomosaic
map is created with solely top-down images, while producing a 3D model requires images
from other angles. “Because of lens distortion, a single image taken straight down from
above” does not “provide reliable measurements,” but “[b]y combining multiple,
overlapping images into one composite image”—an orthomosaic map—“points that appear
in multiple images can be triangulated and measurements become possible.” J.A. 71;
accord J.A. 69 (“Orthomosaic (or ‘ortho’) mapping is the process of creating a composite
aerial image from many smaller images that are combined and tiled into an image showing
6 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 7 of 29
a larger area than any single original image depicts.”). Orthomosaic maps can be used to
take volumetric or two-dimensional measurements and to draw property boundaries.
B.
Jones began providing photography and videography services in North Carolina
around 2016, and in 2017, he founded 360 Virtual Drone Services LLC, through which he
offered a variety of drone-photography services to paying clients. 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. 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.
The trouble came when Jones also began offering aerial mapping services through
his LLC, despite lacking a surveyor’s license in North Carolina (or any other state). On his
website, Jones explicitly advertised that he could create orthomosaic maps and noted that
they could be used, for example, by “construction companies [to] monitor the elevation
changes, volumetrics for gravel/dirt/rock, and watch the changes and progression of the
site as it forms over time.” J.A. 201. His website also stated that his company “cater[ed] to
many industries such as solar, roofing, construction, marketing and advertising,
commercial & residential real estate, search and rescue, agriculture, thermal inspection,
Orthomosaic maps, ground footage, and more.” J.A. 177.
It is unclear from the record whether Jones ever actually provided an orthomosaic
map to a paying customer. Compare J.A. 505 (Jones’s February 22, 2022, deposition
7 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 8 of 29
testimony as the Rule 30(b)(6) witness for 360 Virtual Drone Services, stating that he had
never “provided any services in the field of photogrammetry . . . for paying customers”),
and J.A. 936 (Plaintiffs agreeing that “[i]t is undisputed that 360 Virtual Drone Services
LLC never provided a measurable orthomosaic map or 3D digital model to a paying
customer”), with J.A. 662 (Jones stating in his July 21, 2021, deposition that he generated
somewhere between five and fifteen orthomosaic maps for paying customers). But he did
complete an orthomosaic map to pitch to a client and provided paying customers with
various products that appear to implicate the Act, including the raw aerial images and data
the customers needed to create thermal and aerial maps themselves; aerial images with
associated location data, including elevation data; and aerial photographs where Jones had
drawn rough property lines using Photoshop. Jones has never produced a 3D model for a
client because it is beyond his current skill set, but he avers that he would like to learn how
to do so in the future.
In a December 2018 letter, the Board informed Jones that it was opening an
investigation into whether 360 Virtual Drone Services was practicing land surveying
without a license. Jones responded by email in January 2019, noting that he had added a
disclaimer to his website, and he met with the Board’s investigator in person the following
month. Nevertheless, the Board sent another letter in June 2019 indicating that in its view,
Jones was acting in violation of the Act. Following these interactions, Jones “stopped trying
to develop [his] mapping business,” though he has continued to provide non-map aerial
images and videos for clients. J.A. 91. And while the Board has since “disavow[ed] any
intent to initiate enforcement proceedings against Plaintiffs based on the act of producing
8 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 9 of 29
a PDF image of a map that does not contain measurable information” or “an aerial
photograph, without measurable information, that includes lines indicating the
approximate position of property lines for marketing purposes,” J.A. 489–90; accord J.A.
547, Jones would like to be able to engage in the full range of mapping activities that he
was pursuing before receiving the Board’s December 2018 letter.
Accordingly, Jones and 360 Virtual Drone Services LLC sued the Board in March
2021, alleging facial and as-applied violations of their free-speech rights under the First
Amendment. They sought declaratory and injunctive relief.
The parties cross-moved for summary judgment, and the district court granted the
Board’s motion while denying Jones’s. 360 Virtual Drone Servs. LLC v. Ritter, No. 5:21-
CV-137-FL, 2023 WL 2759032, at *1 (E.D.N.C. Mar. 31, 2023). The court concluded that
Jones had standing to challenge the statute based on his desire to create “two-dimensional
and three-dimensional maps with geospatial data.” Id. at *7. And it concluded that the
Engineering and Land Surveying Act implicated the First Amendment. Id. at *9. But it
found that the challenged provisions constituted “a generally applicable licensing regime
that restricts the practice of surveying to those licensed” and primarily regulated conduct
rather than speech, such that intermediate scrutiny applied. Id. at *11. Finally, the court
concluded that the Act survived intermediate scrutiny. Id. at *12–14. Plaintiffs timely
appealed, pursuing only their as-applied (not facial) challenge to the Act. 2
2 At oral argument, Plaintiffs’ counsel conceded that “on its face, North Carolina’s surveying licensing law doesn’t violate the First Amendment.” Oral Argument at 2:21– 2:25, 360 Virtual Drone Servs. LLC v. Ritter, No. 23-1472 (4th Cir. Jan. 23, 2024), https://www.ca4.uscourts.gov/OAarchive/mp3/23-1472-20240123.mp3.
9 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 10 of 29
II.
“We review a grant of summary judgment de novo, applying the same legal
standards as the district court while viewing all facts and reasonable inferences therefrom
in the light most favorable to the nonmoving party. Summary judgment is appropriate when
‘there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Reyes v. Waples Mobile Home Park Ltd. P’ship, 91 F.4th 270, 276
(4th Cir. 2024) (citation omitted) (quoting Fed. R. Civ. P. 56(a)).
We agree with the district court that Jones possesses standing to challenge the Act
as applied to him. See 360 Virtual Drone Servs., 2023 WL 2759032, at *6–7 (citing Abbott
v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018)). And the core facts are essentially
undisputed. So this appeal hinges on two questions of law: what level of scrutiny we must
apply in evaluating the Act’s constitutionality as applied to Plaintiffs, and whether the Act
can survive that scrutiny. Applying intermediate scrutiny, we conclude that it can.
III.
“The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting U.S. Const. amend. I). But, as with
many other cherished constitutional freedoms, “[l]aws that impinge upon speech receive
different levels of judicial scrutiny depending on the type of regulation and the
justifications and purposes underlying it.” Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir.
2014). So, “because not every interference with speech triggers the same degree of scrutiny
10 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 11 of 29
under the First Amendment, we must decide at the outset the level of scrutiny applicable”
here. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 637 (1994).
Plaintiffs argue that we should apply either strict scrutiny or the form of intermediate
scrutiny this Court has applied to content-neutral regulations of the time, place, and manner
of speech. We disagree. Because the Act is a regulation of professional conduct that only
incidentally impacts speech, our precedent requires that we apply a more relaxed form of
intermediate scrutiny that mandates only that the restriction be “sufficiently drawn” to
protect a substantial state interest.
“[I]t has been the practice of different states, from time immemorial, to exact in
many pursuits a certain degree of skill and learning upon which the community may
confidently rely[.]” Dent v. West Virginia, 129 U.S. 114, 122 (1889). Thus, it is well
established that the “practice” of professions like medicine is “subject to reasonable
licensing and regulation by the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992), overruled on other grounds by Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022); accord Stuart, 774 F.3d at 247 (“The state may establish licensing
qualifications[.]” (citing Dent, 129 U.S. at 122)). But that does not mean “that all regulation
of speech in the [professional] context merely receives rational basis review.” Stuart, 774
F.3d at 249. “Speech is not unprotected merely because it is uttered by ‘professionals.’”
Nat’l Inst. of Fam. & Life Advocs. v. Becerra (NIFLA), 585 U.S. 755, 767 (2018). To the
contrary, the precedent of this Court and the Supreme Court establish that professional
11 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 12 of 29
regulations—like other regulations implicating speech—are subject to various levels of
scrutiny, depending on their nature.
The Supreme Court’s 2018 decision in National Institute of Family & Life
Advocates v. Becerra (“NIFLA”) provides a useful starting point. NIFLA involved a
challenge at the preliminary-injunction stage to California statutes requiring licensed and
unlicensed pregnancy clinics to post certain notices. Id. at 760–61, 765. Relevant here is
its discussion of the provision applicable to licensed clinics, which were being compelled
to speak (by posting certain notices) as part of the regulation of their profession. The notice
requirement was thus content based. Id. at 766.
Normally, a content-based regulation of speech as speech would be subject to strict
scrutiny. Id. (citing Reed, 576 U.S. at 163). But in NIFLA, “the Ninth Circuit did not apply
strict scrutiny because it concluded that the notice regulate[d] ‘professional speech,’”
which it treated as “a separate category of speech . . . subject to different rules.” 3 Id. at
766–67. The Supreme Court rejected that categorical treatment of “professional speech,”
noting that it “ha[d] not recognized ‘professional speech’ as a separate category of speech”
entitled to lesser protections. Id. at 767. However, the Court did not ultimately resolve
whether strict scrutiny applied to the notice requirement for licensed clinics because it
concluded that the requirement “[could ]not survive even intermediate scrutiny.” Id. at 773;
accord id. (leaving open “the possibility that some . . . reason exists” to “treat[] professional
3 This Court, too, had adopted the “professional speech doctrine” before NIFLA. E.g., Moore-King v. County of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013), abrogated by NIFLA, 585 U.S. 755.
12 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 13 of 29
speech as a unique category that is exempt from ordinary First Amendment principles”);
cf. Stuart, 774 F.3d at 248 (pre-NIFLA, declining to “conclusively determine whether strict
scrutiny ever applies” in situations involving “content-based regulation of speech” in the
professional context because the regulation in question failed intermediate scrutiny).
In reaching this conclusion, the Supreme Court recognized that it “ha[d] afforded
less protection for professional speech” in one relevant circumstance, although that
circumstance did not “turn[] on the fact that professionals were speaking.” 4 NIFLA, 585
U.S. at 768 (emphasis added). Specifically, Supreme Court precedent allowed States to
“regulate professional conduct, even [where] that conduct incidentally involves speech.”
Id. But, the Court concluded, that circumstance did not apply to the licensed-clinic notice
at issue in NIFLA. That is, the required notice fell outside the context of “professional
conduct.” Id. at 770. This was because the requirement “applie[d] to all interactions
between a covered facility and its clients, regardless of whether a medical procedure [was]
ever sought, offered, or performed.” Id. So, it “regulate[d] speech as speech.” Id.
The first question before us, therefore, is whether the Act—as applied to Plaintiffs—
is a regulation of “speech as speech,” or a regulation of professional conduct subject to
“less protection.” Id. at 768, 770; cf. Vizaline, L.L.C. v. Tracy, 949 F.3d 927, 931 (5th Cir.
2020) (remanding for district court to analyze whether the licensing requirements at issue
“regulate only speech, restrict speech only incidentally to their regulation of non-
4 The Supreme Court also recognized a second circumstance where less protection applied—“to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech’”—but that circumstance is not at issue in the case at bar. NIFLA, 585 U.S. at 768.
13 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 14 of 29
expressive professional conduct, or regulate only non-expressive conduct”). Of course,
“drawing the line between speech and conduct can be difficult,” NIFLA, 585 U.S. at 769,
and “[t]here are few absolutes in the difficult area of professional regulation and
professional expression,” Stuart, 774 F.3d at 255. However, this case provides an
opportunity to sketch some of the applicable principles that can serve as guideposts through
this thicket.
Because NIFLA did not itself involve a regulation of professional conduct subject
to reduced First Amendment protections, it did not elaborate much on what such a
regulation might look like. But it did provide a helpful example: the requirement, upheld
in Planned Parenthood of Southeastern Pennsylvania v. Casey, that doctors give women
seeking abortions certain information. NIFLA, 585 U.S. at 769–70 (citing Casey, 505 U.S.
at 884). The Supreme Court held in Casey, and reiterated in NIFLA, that the law challenged
in Casey regulated professional conduct because it “regulated speech only ‘as part of
the practice of medicine, subject to reasonable licensing and regulation by the State.’” Id.
at 770 (quoting Casey, 505 U.S. at 884). And, the Court concluded, the law merely aimed
to support the patient’s informed consent to a medical procedure. Id.; see Stuart, 774 F.3d
at 250–55 (distinguishing a similar, but more extreme, law from the one at issue in Casey
and concluding that that law violated the First Amendment).
More recently, in Capital Associated Industries, Inc. v. Stein, this Court considered
a challenge to a professional-practice restriction after NIFLA. Cap. Associated Indus., Inc.
v. Stein, 922 F.3d 198, 207 (4th Cir. 2019). In that case, the plaintiff challenged North
Carolina’s unauthorized practice of law (“UPL”) statute—specifically, its ban on the
14 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 15 of 29
practice of law by corporations. Id. at 202. The plaintiff was a trade association that
“want[ed] to provide legal services to its members” through its call center, but could not
do so “because state law forbid[] corporations from practicing law”—even if the call-center
staff member was themselves an attorney. Id. The district court granted summary judgment
to the defendants. Id. We affirmed, concluding that the statute was a regulation of
professional conduct that only incidentally burdened speech. Id. at 202, 207.
In so concluding, we emphasized that the ban on the practice of law by corporations
was “part of a generally applicable licensing regime that restricts the practice of law to bar
members and entities owned by bar members” and stated that “any impact the UPL statutes
have on speech is incidental to the overarching purpose of regulating who may practice
law.” Id. at 207. We also noted that “the practice of law has communicative and non-
communicative aspects,” but that the statutes “don’t target the communicative aspects of
practicing law, such as the advice lawyers may give to clients. Instead, they focus more
broadly on the question of who may conduct themselves as a lawyer.” Id. at 208. We
concluded by saying that “[l]icensing laws inevitably have some effect on the speech of
those who are not (or cannot be) licensed. But that effect is merely incidental to the primary
objective of regulating the conduct of the profession.” Id.; accord Del Castillo v. Sec’y,
Fla. Dep’t of Health, 26 F.4th 1214, 1226 (11th Cir.) (upholding license requirement for
nutritionists as regulation of “occupational conduct”), cert. denied sub nom. Del Castillo
v. Ladapo, 143 S. Ct. 486 (2022).
To be sure, “NIFLA rejected the proposition that First Amendment protection turns
on whether the challenged regulation is part of an occupational-licensing scheme.”
15 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 16 of 29
Vizaline, 949 F.3d at 932 (emphasis added). So “the fact that the Act ‘generally functions’
as a regulation on professional conduct” cannot be dispositive; rather, the court must
evaluate the particular provision at issue and determine whether it “targets ‘speech as
speech,’ rather than professional conduct that just so happens to sweep up speech.” Nutt v.
Ritter, --- F.Supp.3d ---, No. 7:21-CV-00106-M, 2023 WL 9067799, at *14 (E.D.N.C. Dec.
20, 2023) (quoting NIFLA, 585 U.S. at 770). Put another way, our reference in Capital
Associated Industries to the fact that the challenged law was “part of a generally applicable
licensing regime” could not be (and was not) the end of the inquiry; it was a descriptive
statement that helped to contextualize a provision that we otherwise concluded was a
regulation of conduct. Cap. Associated Indus., 922 F.3d at 207.
Indeed, in Billups v. City of Charleston—another post-NIFLA case—this Court
considered a generally applicable licensing regime that we concluded was directed at
speech, not conduct. Billups v. City of Charleston, 961 F.3d 673 (4th Cir. 2020). There, we
held that a city ordinance requiring tour guides offering paid tours in Charleston’s historic
districts to obtain a license—which necessitated passing a test and jumping through other
hoops—imposed a burden on speech that was more than incidental because it “completely
prohibit[ed] unlicensed tour guides from leading visitors on paid tours—an activity which,
by its very nature, depends upon speech or expressive conduct.” Id. at 683.
Read together, Capital Associated Industries and Billups help to draw the boundary
lines around what constitutes a conduct-focused professional regulation. The fact that a
regulation falls within a generally applicable licensing regime does not automatically mean
it is aimed at conduct, as Billups demonstrates. But the fact that a regulation directs or
16 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 17 of 29
prohibits particular speech in the professional context does not automatically mean it is
aimed at speech, either, as Capital Associated Industries and Casey establish. Cf. 2 Rodney
A. Smolla, Smolla & Nimmer on Freedom of Speech § 20:37.40 (3d ed. 1996 & Supp.
2024) (“While a state may require a law license to practice law, . . . a state may not require
a license to write a law review article, or operate a website devoted to commentary and
critique on legal issues.”).
Further, contrary to Plaintiffs’ suggestion, see Opening Br. at 33–34, finding the
line between speech and conduct is not as simple as asking whether the prohibition is
literally one against verbal or written “speech,” on the one hand, or one against “conduct”
(i.e., nonverbal action) on the other. To the contrary, this line is quite blurry, since of course
nonverbal action can constitute speech for constitutional purposes (e.g., a silent protest)
and written or verbal speech can constitute professional conduct (e.g., writing a
prescription). See NIFLA, 585 U.S. at 769 (acknowledging that “drawing the line between
speech and conduct can be difficult”); Smolla, supra, § 20:37.40 (“The point at which the
profession of ideas becomes the practice of a profession remains murky at best in modern
First Amendment jurisprudence, an ongoing work-in-progress.”).
Instead, in drawing the line between a regulation aimed at professional conduct that
incidentally burdens speech and one aimed at speech as speech, a variety of factors may
come into play.
For example, courts are more likely to view a licensing regime limiting who may
engage in certain professional conduct as conduct-focused for purposes of the First
Amendment analysis where the conduct carries legal, health, economic, or public-safety-
17 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 18 of 29
related consequences, such as in the realms of law, medicine, accounting, and engineering.
E.g., Stuart, 774 F.3d at 247 (“The state’s power to prescribe rules and regulations for
professions, including medicine, has an extensive history.”); NIFLA, 585 U.S. at 769
(medicine); Dent, 129 U.S. at 122 (medicine); Cap. Associated Indus., 922 F.3d at 207
(law); Crownholm v. Moore, No. 23-15138, 2024 WL 1635566, at *2 (9th Cir. Apr. 16,
2024) (per curiam) (surveying); Del Castillo, 26 F.4th at 1226 (dietetics and nutrition);
Tingley v. Ferguson, 47 F.4th 1055, 1082 (9th Cir. 2022) (psychotherapy), cert. denied,
144 S. Ct. 33 (2023); cf. Billups, 961 F.3d at 682–83 (regulation was not conduct-focused
where the licensing regime was aimed at giving tours, the practice of which does not carry
any of the aforementioned consequences).
Factors that courts have considered in concluding that a licensing regime is aimed
at speech as speech—not conduct—include (1) where the regulation is aimed at speech
taking place in a traditionally public sphere, e.g., Billups, 961 F.3d at 683 (“The Ordinance
undoubtedly burdens protected speech, as it prohibits unlicensed tour guides from leading
paid tours—in other words, speaking to visitors—on certain public sidewalks and streets[,]
. . . . where First Amendment rights are at their apex.” (citing Frisby v. Schultz, 487 U.S.
474, 480–81 (1988))); and (2) where the regulation appears to regulate some kind of
unpopular or dissenting speech, e.g., NIFLA, 585 U.S. at 771 (noting the risk that
Government regulation of professional speech can be used “to suppress unpopular ideas or
information” (quoting Turner Broad. Sys., 512 U.S. at 641)); Stuart, 774 F.3d at 246
(noting that “the statement compelled” in that case was “ideological”); Cap. Associated
Indus., 922 F.3d at 208 (emphasizing, in concluding that the licensing regime at issue was
18 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 19 of 29
conduct-focused, that the statutes did not “target the communicative aspects of practicing
law, such as the advice lawyers may give to clients”); Otto v. City of Boca Raton, 981 F.3d
854, 859 (11th Cir. 2020) (“[T]he First Amendment has no carveout for controversial
speech.”).
So, for example, Capital Associated Industries involved a classic regulation of
conduct with an incidental burden on speech: the law prohibited certain entities from
offering legal services or advice (speech that has economic and legal consequences), and
had no readily apparent implications for unpopular or dissenting speech. Cap. Associated
Indus., 922 F.3d at 207–08. And the speech in Casey—although compelling speech and
thus foreclosing some forms of dissent, on a subject that is hotly disputed—carried legal
and health-related consequences and was made in a private, doctor-patient relationship,
and thus fell on the conduct end of the spectrum. NIFLA, 585 U.S. at 769–70 (citing Casey,
505 U.S. at 884). By contrast, although the regulation in Billups did not impact the content
of licensed tour guides’ speech, that speech had no economic, legal, public-safety, or
health-related consequences and was made in a traditional public space, and thus was being
regulated as speech. Billups, 961 F.3d at 677, 683.
The distinction between a regulation aimed at conduct that incidentally burdens
speech, and a content-neutral regulation of speech as speech, matters because it carries
consequences for our level of scrutiny. As noted above, typically, a content-based
regulation of speech as speech would trigger strict scrutiny. Reed, 576 U.S. at 163–64. But
where “[a] statute[] regulate[s] conduct, we need not engage with . . . descriptors” like
19 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 20 of 29
“content-based and identity-based.” Cap. Associated Indus., 922 F.3d at 209 n.4 (emphasis
added). Instead, we analyze regulations of conduct—as well as content-neutral regulations
of speech—under intermediate scrutiny. But our case law spells out at least two distinct
intermediate-scrutiny tests, which carry quite different burdens. 5
Specifically, and as detailed further below, there is a distinction between (1) the
traditional intermediate-scrutiny test we applied in our decisions in Reynolds v. Middleton,
779 F.3d 222 (4th Cir. 2015), and Billups, 961 F.3d 673, in reliance on the Supreme Court’s
decisions in McCullen v. Coakley, 573 U.S. 464 (2014), and Ward v. Rock Against Racism,
491 U.S. 781 (1989), and (2) the loosened intermediate-scrutiny test for professional-
conducted-focused regulations we applied in our decision in Capital Associated Industries,
922 F.3d 198, in reliance on the Supreme Court’s decision in NIFLA, 585 U.S. 755.
We note at the outset that the other circuits to have evaluated the applicable level of
scrutiny for conduct-focused regulations post-NIFLA have applied rational basis review,
not intermediate scrutiny. See Del Castillo, 26 F.4th at 1226 (11th Cir.) (concluding, based
5 It is not unprecedented to recognize variable intermediate scrutiny tests. In United States v. Marzzarella, the Third Circuit stated that “[i]n the First Amendment speech context, intermediate scrutiny is articulated in several different forms.” United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (collecting cases), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). We recognized the same in United States v. Chester, which cited Marzzarella’s discussion of the “various forms of intermediate scrutiny.” United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (citing Marzzarella, 614 F.3d at 98), abrogated on other grounds by Bruen, 597 U.S. 1. To be sure, both Chester and Marzzarella spoke of these “various forms” as still “essentially shar[ing] the same substantive requirements.” Id. (quoting Marzzarella, 614 F.3d at 98). But we conclude that NIFLA and Capital Associated Industries, both of which were decided after Marzzarella and Chester, recognized requirements different from the earlier line of cases.
20 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 21 of 29
on pre-NIFLA Eleventh Circuit law, that “[b]ecause the [challenged] Act is a professional
regulation with a merely incidental effect on protected speech, it is constitutional under the
First Amendment,” and thus affirming the district court’s rejection of the plaintiff’s First
Amendment claim—which had applied rational basis review—without the need for further
analysis (cleaned up)); Tingley, 47 F.4th at 1077 (9th Cir.) (applying rational basis review,
based on pre-NIFLA Ninth Circuit law); Crownholm, 2024 WL 1635566, at *2 & n.2 (9th
Cir.) (applying rational basis review to a post-NIFLA challenge to a land-surveying act,
and dismissing a reference to intermediate scrutiny in another post-NIFLA case as dicta);
EMW Women’s Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 436 (6th Cir. 2019)
(rejecting intermediate scrutiny). 6
We are, of course, bound by our Circuit’s prior decisions on this point. But we note
the fact that other circuits have applied rational basis review to make clear that our Circuit
has not gone out on a limb in applying a lower form of intermediate scrutiny to conduct-
focused licensing regimes than to content-neutral time, place, and manner regulations. To
the contrary, that we apply intermediate scrutiny at all means the law in our Circuit is more
rigorous for legislatures to satisfy than it is in other circuits.
6 Cf. Vizaline, 949 F.3d at 934 (5th Cir.) (declining to express any “view on what level of scrutiny might be appropriate for applying [the challenged] licensing requirements to [the plaintiff]’s practice”); Hines v. Quillivan, 982 F.3d 266, 272 (5th Cir. 2020) (same); Brokamp v. James, 66 F.4th 374, 392 (2d Cir. 2023) (applying intermediate scrutiny, but only after assuming without deciding that the professional services at issue “consist[ed] only of speech without any non-verbal conduct” (emphasis added)), cert. denied, 144 S. Ct. 1095 (2024); Otto, 981 F.3d at 868 (11th Cir.) (applying strict scrutiny because the ordinances in question were “content-based regulations of speech”).
21 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 22 of 29
Turning to the two lines of cases relevant for intermediate scrutiny, in Reynolds v.
Middleton, we followed the classic formulation from Ward v. Rock Against Racism—
echoed in McCullen v. Coakley—that in the context of a challenge to a “[c]ontent-neutral
time, place, and manner regulation[],” intermediate scrutiny means that the “restrictions
must be narrowly tailored to serve a significant government interest and leave open ample
alternative channels of communication.” Reynolds, 779 F.3d at 225–26 (cleaned up);
accord McCullen, 573 U.S. at 477 (citing Ward, 491 U.S. at 791). We stated that the
Supreme Court’s “rejection of the Commonwealth [of Massachusetts]’s narrow-tailoring
arguments [in McCullen] makes it clear that intermediate scrutiny . . . require[s] the
government to present actual evidence supporting its assertion that a speech restriction
does not burden substantially more speech than necessary.” Reynolds, 779 F.3d at 229
(emphasis added); see McCullen, 573 U.S. at 496. Thus, the government’s “argument
unsupported by the evidence will not suffice to carry [its] burden.” Reynolds, 779 F.3d at
229.
In Billups, we concluded that “[r]ead together, Reynolds and McCullen establish the
following rule: To prove that a content-neutral restriction on protected speech is narrowly
tailored to serve a significant governmental interest, the government must, inter alia,
present evidence showing that—before enacting the speech-restricting law—it ‘seriously
undertook to address the problem with less intrusive tools readily available to it.’” Billups,
961 F.3d at 688 (quoting McCullen, 573 U.S. at 494); accord People for the Ethical
Treatment of Animals, Inc. v. N.C. Farm Bureau Fed’n, Inc., 60 F.4th 815, 831 (4th Cir.),
22 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 23 of 29
cert. denied, 144 S. Ct. 325, and cert. denied sub nom. Stein v. People for the Ethical
Treatment of Animals, Inc., 144 S. Ct. 326 (2023).
Yet in evaluating North Carolina’s UPL statute in Capital Associated Industries, we
noted that in Supreme Court cases “review[ing] restrictions on conduct that incidentally
burden speech,” “the state actors involved were not required to demonstrate a compelling
interest and narrow tailoring.” Cap. Associated Indus., 922 F.3d at 208 (emphasis added).
Rather, “[t]o survive intermediate scrutiny” in such a case, “the defendant must show ‘a
substantial state interest’ and a solution that is ‘sufficiently drawn’ to protect that interest.”
Id. at 209 (quoting NIFLA, 585 U.S. at 773). Further, the defendant need only show “a
‘reasonable fit between the challenged regulation’ and the state’s interest—not [that the
regulation is] the least restrictive means” for achieving its goal. Id. at 209–10 (quoting
United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010), abrogated on other grounds
by N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)). And, in resolving the
legality of the UPL statute at issue in Capital Associated Industries, we relied on common
sense—not specific evidence—to conclude that the defendant had met this burden. Id. at
209–210.
NIFLA and Capital Associated Industries suggest that the burden for defendants in
cases involving regulations aimed at professional conduct that incidentally burden speech
is not exceedingly high. See NIFLA, 585 U.S. at 768 (referring to “less protection”); Cap.
Associated Indus., 922 F.3d at 207 (“We recognize that the States have . . . broad power to
establish standards for licensing practitioners and regulating the practice of professions.”
(quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975))). In Capital Associated
23 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 24 of 29
Industries, we concluded that the form of intermediate scrutiny we found to apply was “a
sensible result, as it fits neatly with the broad leeway that states have to regulate
professions.” Cap. Associated Indus., 922 F.3d at 209 (emphasis added).
The upshot is that for most content-neutral restrictions on speech, intermediate
scrutiny requires the government to produce “actual evidence supporting its assertion that
a speech restriction does not burden substantially more speech than necessary.” Reynolds,
779 F.3d at 229. But where the restrictions are primarily aimed at professional conduct and
only incidentally burden speech, intermediate scrutiny does not require such evidence, and
instead just requires that the restriction be “sufficiently drawn” to protect “a substantial
state interest.” Cap. Associated Indus., 922 F.3d at 209 (quoting NIFLA, 585 U.S. at 773).
IV.
Applying the principles established above to the facts of this case, we conclude that
the Act survives Plaintiffs’ as-applied First Amendment challenge.
First, applying the non-exhaustive list of factors we set out above for distinguishing
between licensing regulations aimed at conduct and those aimed at speech as speech—
whether the speech carries economic, legal, public-safety, or health-related consequences;
whether the speech takes place in a traditionally public space; and whether the regulation
seeks to quell unpopular or dissenting speech—we conclude that, as applied to Plaintiffs,
the relevant provisions of the Act are aimed at conduct.
As applied to Plaintiffs, the challenged portions of the Act prevent an unlicensed
and untrained person who is not acting under the supervision of a licensed surveyor from
24 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 25 of 29
selling two- or three-dimensional maps or models of areas of land that contain measurable
data. This is conduct that classically falls under the surveying profession. And it carries
economic and legal consequences. When an individual provides a map or 3D model of land
with a scale bar or other measurable data, there is an implied accuracy. Plaintiffs’ expert
conceded that “[t]here[ was] the potential for” errors in the form of “provid[ing] a faulty
work product to [a] client who’s relying on [the business] to provide accurate information,”
which could impact the client—for example, related to calculating “the amount of fencing
they might need”—as well as “their neighbors, if it’s an issue involving boundaries or real
estate.” J.A. 900–01. Indeed, experience shows that even very minor discrepancies in
measurements can create significant liability issues. E.g., Brandao v. DoCanto, 951 N.E.2d
979, 982–83 (Mass. App. Ct. 2011) (affirming judgment ordering defendants to remove
portion of condominium structure due to 13.2-inch encroachment).
The speech at issue also takes place in the private sphere, not on public sidewalks
like with the tour guides in Billups. And there is no suggestion that the map or modeling
data Plaintiffs would like to produce constitutes unpopular or dissenting speech, nor that
the Act directs surveyors’ speech once licensed. See 360 Virtual Drone Servs., 2023 WL
2759032, at *11 (“Although surveying, like the practice of law, has ‘communicative and
non-communicative aspects,’ the Act does not control what surveyors may tell their clients,
instead ‘focus[ing] more broadly on the question of who may conduct themselves as a
[surveyor].’” (alteration in original) (quoting Cap. Associated Indus., 922 F.3d at 208)).
Accordingly, the factors we have identified all point to the conclusion that the Act
regulates professional conduct and only incidentally burdens speech.
25 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 26 of 29
Second, we must apply the appropriate form of intermediate scrutiny to the facts
before us. Again, for a conduct-based regulation, intermediate scrutiny does not require the
state actors “to demonstrate a compelling interest and narrow tailoring,” nor that the
regulation is “the least restrictive means.” Cap. Associated Indus., 922 F.3d at 208, 210.
Instead, they “must show ‘a substantial state interest’ and a solution that is ‘sufficiently
drawn’ to protect that interest”—that is, that there is “a ‘reasonable fit between the
challenged regulation’ and the state’s interest.” Id. at 209–10 (first quoting NIFLA, 585
U.S. at 773; then quoting Chester, 628 F.3d at 683). They can, but need not, point to
specific record evidence to support this contention.
Plaintiffs do not dispute that protecting property interests and promoting the public
welfare by assuring the public that the work performed by surveyors conforms to a
minimum level of competence are substantial state interests. Nor could they. As the district
court rightfully stated, “[a]s a general matter, the regulation of the practice of surveying
safeguards property rights, which rights governments have a legitimate interest in
protecting,” and in this case “[t]he record evidence reflects that the Act establishes a
minimum level of competence, thereby protecting the public from negligence,
incompetence, and professional misconduct.” 360 Virtual Drone Servs., 2023 WL
2759032, at *12 (first citing McCullen, 573 U.S. at 486 (“We have . . . previously
recognized the legitimacy of the government’s interest[] in . . . protecting property
rights[.]”); then citing In re Suttles Surveying, P.A., 742 S.E.2d 574, 578–79 (N.C. Ct. App.
2013) (“[A]s N.C. Gen. Stat. § 89C-2 makes clear, the Legislature intended its rules on the
26 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 27 of 29
practice of surveying to protect property interests in North Carolina.”); then citing N.C.
Gen. Stat. § 89C-13 (creating education, examination, and experience requirements for
licensure); and then citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460 (1978)
(“[T]he State bears a special responsibility for maintaining standards among members of
the licensed professions.”)).
So the only question is whether, as applied to Plaintiffs, the challenged provisions
are sufficiently drawn to protect those substantial state interests. We agree with the district
court that they are. Id. at *13 (“[T]he Act is ‘sufficiently drawn’ to th[e protected] interest
where [P]laintiffs’ actions only are restricted to the extent they seek to create maps or
models conveying location information or property images capable of measurement.”).
Our decision in Capital Associated Industries is again instructive. That case
involved a more draconian law than the one at issue here, which we nevertheless upheld.
Under the challenged UPL law, “when legal issues ar[o]se, [the plaintiff]’s [call center]
experts ha[d] to steer the conversation elsewhere, end the conversation, or refer the
[association] member to outside counsel”—even when the individual speaker was an
attorney. Cap. Associated Indus., 922 F.3d at 202. Nevertheless, we concluded that
“[b]arring corporations from practicing law” was “sufficiently drawn to protect” North
Carolina’s “interest in regulating the legal profession to protect clients.” Id. at 209.
In so holding, we did not impose a heavy burden on North Carolina. Rather, we
noted several potential issues in the absence of the regulation—“[p]rofessional integrity
could suffer,” and “[n]onlawyers would likely supervise lawyers representing third-party
clients at [Capital Associated Industries], which could compromise professional judgment
27 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 28 of 29
and generate conflicts between client interests and the corporation’s interests”—and
explained that the law was a reasonable fit because it “proscrib[ed] law practice by
organizations that pose the most danger, while exempting organizations that pose little
danger.” Id.
Similarly, the Act in this case protects the professional integrity of surveyors: a
surveying license is not easy to obtain, and there is a public interest in ensuring there is an
incentive for individuals to go through that rigorous process and become trained as
surveyors. Further, the Act protects consumers from potentially harmful economic and
legal consequences that could flow from mistaken land measurements. Tellingly, when
asked how a client would be “protected” in the absence of the Act “against somebody who
really doesn’t know what they are doing but is [offering] the client services in the field of
photogrammetry,” Plaintiffs’ expert responded, “That’s up to the client”—meaning, he
agreed, “buyer beware.” J.A. 902. We agree with the Board that the First Amendment
doesn’t require the State to accept this caveat-emptor view of regulating surveying.
At the same time, the Act limits its scope to activities that fall within the traditional
practice of surveying. So, for example, Plaintiffs may still engage in the activities that fall
within their area of experience and expertise—namely, taking aerial photos—and can even
draw rough property lines in certain circumstances. See J.A. 489–90, 547. They only may
not provide the sort of measurable data that falls within the realm of the profession of
surveying.
And while perhaps a disclaimer would suffice to resolve the concerns in this case,
the Board does not have to show that the regulation is “the least restrictive means” available
28 USCA4 Appeal: 23-1472 Doc: 39 Filed: 05/20/2024 Pg: 29 of 29
to protect the substantial interests at play. Cap. Associated Indus., 922 F.3d at 210. The
wisdom of the State’s policy choices among the options permitted by the Constitution are,
of course, beyond the purview of this Court.
States do not have a constitutional blank check when it comes to licensing regimes.
As NIFLA and Billups demonstrate, merely placing a regulation aimed at speech into a
licensing regime does not insulate it from scrutiny as a regulation of speech. E.g., NIFLA,
585 U.S. at 773 (rejecting the idea that “States [have] unfettered power to reduce a group’s
First Amendment rights by simply imposing a licensing requirement”). And even where a
regulation is in fact aimed at professional conduct, States must still be able to articulate
how the regulation is sufficiently drawn to promote a substantial state interest. But where,
as here, the State carries that burden, we can ask no more of the State, and its licensing
requirement will survive First Amendment scrutiny.
AFFIRMED
Related
Cite This Page — Counsel Stack
102 F.4th 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/360-virtual-drone-services-llc-v-andrew-ritter-ca4-2024.