Proskauer

The Sixth Circuit just bucked a First Amendment challenge to Michigan’s drone-hunting ban, declining to revisit en banc a prior decision that affirmed a ruling upholding a state law that prohibits the use of drones to hunt or collect game or fish. (Yoder v. Bowen, 146 F.4^th 516 (6th Cir. 2025), reh’g en banc denied, No. 24-1593 (6^th Cir. Oct. 3, 2025)). After this setback in the case, it would appear that it’s time for the parties to file away their briefs and head back to camp.

The dispute began in July 2023 when plaintiffs Jeremy Funke, a Michigan hunter, and Mike Yoder (“Yoder”), a small business owner (collectively, the “Plaintiffs”), sued the Michigan Department of Natural Resources (“DNR”), arguing that M.C.L. § 324.40111c, referred to as the “Drone Statute,” unlawfully restricted Yoder’s ability to operate his drone service in the state to locate downed game on behalf of hunters. They alleged that by preventing drone operators from gathering and conveying the location information of downed game to hunters, the Drone Statute violated their First Amendment right to disseminate and receive information. Asserting this alleged violation, Plaintiffs sought a permanent injunction restraining DNR from enforcing the Drone Statute.

The district court dismissed the case in June 2024, and more than a year later, a Sixth Circuit panel followed, affirming dismissal and subsequently denying rehearing. However, in the appeals court’s refusal to rehear the case en banc, one judge, while respecting the denial for rehearing, wrote a statement suggesting this case highlighted a growing uncertainty surrounding the speech-inputs doctrine, particularly when new technologies are involved, and that Supreme Court guidance may soon be needed.

For hunters across the country, gearing up for fall hunting season involves significant time and preparation. Hunters spend countless hours preparing by building blinds, clearing brush for shooting lanes, and installing trail cameras with the hopes of bagging (or “harvesting”) a deer and filling their tags by the end of the season. All this effort is meant to provide certainty to an activity where the presence of game and the desired outcome can often depend on sheer luck and the whims of Mother Nature. Even with perfect preparation and careful aim, some hunters still come home empty-handed, as a wounded deer not hit with a vital shot can travel a great distance, making it notoriously difficult to find. Therefore, some hunters might look for assistance beyond tracking dogs and trail cameras to ensure that the hours spent preparing are worthwhile.

Hoping to solve these challenges, Yoder and his Ohio-based company, Drone Deer Recovery Media Inc. (“DDR”), sought to assist Michigan hunters by locating downed game using drones. When a hunter wounds a deer, they can contact DDR, which connects them with a network of professional drone pilots capable of swiftly finding downed game. Equipped with infrared cameras and thermal imaging technology, these drones can track a deer’s heat signature and pinpoint its precise location for retrieval. According to DDR, the average search takes 20 minutes, and their pilots have a 99 percent success rate.

But DDR’s business never took flight in Michigan. DDR claimed that, despite frequent requests from Michigan hunters, they were unable to provide drone-recovery services in the state due to DNR’s warnings that the company would be in violation of the Drone Statute, which prohibits using drones to “take” game. The relevant statute provides: “Use of unmanned vehicle or device. (2) An individual shall not take game or fish using an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight or using an unmanned vehicle or unmanned device that operates on the surface of water or underwater.” DNR interprets “use” to include “locate.” Thus, when a drone locates an animal’s carcass, the drone is being “used” to “collect” that animal, which DNR considers a “taking” in violation of the Drone Statute.

The legislative commentary to the statute explains that the law was enacted to prevent the use of drones by both anti-hunting activists attempting to disrupt hunting and hunters seeking an unfair advantage, as it considered such drone use "would violate fair-chase principles and take away from the spirit and tradition of ethical hunting and fishing.” The Boone and Crockett Club, North America's oldest wildlife and habitat conservation group, defines fair chase as “the ethical, sportsmanlike and lawful pursuit and taking of any free-ranging wild game animal in a manner that does not give the hunter an improper or unfair advantage over the game animals.”

Filing suit in July 2023, Plaintiffs contended that DNR’s interpretation of the statute amounted to a content-based restriction on speech and hindered a “promising, innovative solution to deer carcass recovery.” By prohibiting drone operators from gathering and conveying the location of a downed deer, the complaint asserted that the statute allegedly targeted a specific category of information. Plaintiffs’ suit sought a declaration that DNR’s interpretation of the Drone Statute and proposed enforcement unlawfully burdened their First Amendment right to create and share information, as well as an injunction barring DNR from enforcing the statute to prevent the creation, transmission and receipt of certain location information via drones. In opposition, DNR moved to dismiss, arguing the Drone Statute regulates conduct (i.e., using a drone to locate a wounded deer), not speech (i.e., telling another person a deer’s location).

However, the Plaintiffs missed their shot when a Michigan district court dismissed their claims. The court, in part, held that the statute regulates conduct rather than speech, emphasizing that it prohibits the use of drones to assist in hunting, not the communication of location information. The court also held that Plaintiffs lacked standing to challenge the provision on First Amendment grounds, as “their ability to relay the location information is not regulated by the Drone Statute, just flying the drone.”

On appeal, the Sixth Circuit affirmed the dismissal, but on narrower grounds. Unlike the district court, the Sixth Circuit held the Plaintiffs did have standing (or a redressable injury), as a favorable ruling would have allowed the Plaintiffs to resume providing and receiving drone-based game recovery services. However, turning to the merits of Plaintiffs’ as-applied constitutional challenge, the panel still concluded that the Plaintiffs failed to hit the target. The panel stated that the drone use at issue is not “inherently expressive conduct” and identified the Drone Statute as a content-neutral regulation of conduct, thus triggering intermediate scrutiny (“[T]he Drone Statute does not ban the use of drones for taking game based on the message conveyed or the information created.”)

Applying intermediate scrutiny, the panel held that the Drone Statute was constitutional. The court found that the statute served Michigan’s “substantial interest” in regulating hunting and natural resources within the state and that the statute’s legislative history confirmed that it was enacted to both prevent the disruption of hunting by activists and preserve fair hunting principles. Furthermore, the court found that the “neutral regulation” only burdened expression “incidentally” and no more than necessary to further the government’s objectives, therefore allowing the government to satisfy an application of intermediate scrutiny to the facts.

When the Plaintiffs sought rehearing en banc, the full Sixth Circuit declined another round in the case. However, Circuit Judge John K. Bush, who did not sit on the original panel, wrote separately to express concerns about the panel’s treatment of the speech-inputs doctrine. In Judge Bush’s view, the Supreme Court’s application of the doctrine suggests that “heightened scrutiny,” an undefined level of scrutiny perhaps above intermediate scrutiny, applies when the government seeks to ban the means to create speech (e.g., a government ban on the sale of pen and paper). He noted that the panel may have erred in one instance by narrowly interpreting the doctrine to apply only to “core political speech” and not applying a high enough level of scrutiny to the Michigan statute, and that such precedent might diminish First Amendment protection in a future case with higher stakes. However, he acknowledged that any misstep was understandable given the unclear and unsettled case law surrounding the doctrine.

While the court’s decision rejecting the Plaintiffs’ challenge was hardly a trophy to mount on a wall, the Plaintiffs’ challenge raised important questions about the future of First Amendment protections, specifically future courts’ treatment of the speech-inputs doctrine with respect to modern technologies. Judge Bush’s comments demonstrate lower courts’ need for additional clarity on the subject, even though the hunting drones central to this case were not the perfect vehicles for that discussion.