42 USC § 1983 action challenging a Michigan law banning the use of drones to hunt or collect downed game (MCL 324.40111c(2) - the Drone Statute); Standing; Whether plaintiffs established “an imminent future injury” to support standing in the pre-enforcement context; Susan B Anthony List v Driehaus; First Amendment claim asserting a right to create, disseminate, & receive location information for downed game; Level of scrutiny; Lichtenstein v Hargett; Michigan Department of Natural Resources (MDNR or the Department); Drone Deer Recovery, LLC (DDR)

[This appeal was from the WD-MI.] The court held that while plaintiffs (including a drone recovery company and a deer hunter) had standing to challenge Michigan’s “Drone Statute,” they could not establish a First Amendment constitutional violation where the law satisfies intermediate scrutiny. Plaintiffs sued defendant-director of the MDNR, challenging a Michigan law that bans the use of drones to hunt or collect downed game. They claimed this statute, “as applied to them, violates their First Amendment right to create, disseminate, and receive location information for downed game.” They sought to permanently enjoin the MDNR from enforcing it. The district court ruled that they lacked standing and failed to state a claim. The court first held that plaintiffs had standing to sue where they successfully alleged the required “pre-enforcement injury”—they showed “that they intend to engage in conduct that is at least ‘arguably affected with a constitutional interest,’ that their intended conduct is ‘proscribed by a statute,’ and that they face ‘a credible threat of prosecution’ if [plaintiff-]DDR begins doing business in Michigan.” As for “traceability,” plaintiffs alleged that the MDNR has the authority to enforce the law, and the Department acknowledged that it can issue citations. This “‘direct role in enforcing’ the Drone Statute” supported a finding of causation in this pre-enforcement action. And injunctive relief would redress the asserted injury. Turning to the merits of the First Amendment claim, the court rejected plaintiffs’ argument that strict scrutiny must be applied. The Drone Statute “is not content-based” but rather is “content-neutral.” The court noted it “does not regulate drone use based on the information the drone might create in the process, but because ‘of the action it entails’—pursuing injured animals.” Also, the drones do not create speech. “Lichtenstein’s discussion of ‘speech inputs’ refers to ‘inputs” that create traditional ‘political speech.’” Lastly, flying a drone “is not inherently expressive conduct.” The court held that the Drone Statute survives intermediate scrutiny. It furthers “important conservation and preservation interests[,]” and it “incidentally burdens expression, rather than targeting it.” Further, it “restricts First Amendment expression no more than necessary.” The court found that it “is narrowly tailored because it would be harder for Michigan to achieve its stated interests—protecting its natural resources and preserving fair-chase principles in hunting—without banning the use of drones to take game.” Affirmed.