Mike Yoder v. Scott Bowen

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0271p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MIKE YODER; DRONE DEER RECOVERY LLC,
identified on initiating documents as Drone Deer
Recovery Media, Inc.; JEREMY FUNKE,
Plaintiffs-Appellants,
v.
SCOTT BOWEN, in his official capacity as Director of
the Michigan Department of Natural Resources,
identified on initiating document as Shannon Lott,
Defendant-Appellee.
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No. 24-1593
On Petition for Rehearing En Banc
United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:23-cv-00796—Paul Lewis Maloney, District Judge.
Decided and Filed: October 3, 2025
Before: COLE, WHITE, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Andrew R. Quinio, Donna G. Matias,
PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants. ON RESPONSE:
Nathan A. Gambill, Echo Aloe, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
The court delivered an ORDER denying the petition for rehearing en banc. BUSH, J.
(pp. 3–9), delivered a separate statement respecting the denial of the petition for rehearing en
banc.
>

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_________________
ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision.
The petition was then circulated to the full court. No judge requested a vote on the
suggestion for rehearing en banc.
Therefore, the petition is denied.

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_________________
STATEMENT
_________________
JOHN K. BUSH, Circuit Judge, respecting the denial of rehearing en banc. This case
involves an as-applied challenge to a Michigan law (the drone statute) that makes it illegal to
“us[e] an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve
flight”—i.e., a drone—while “tak[ing] game or fish.” Mich. Comp. Laws § 324.40111c(2).
Drone Deer Recovery, a plaintiff here, offers a service where it tracks downed animals using
drones and then posts the location of the animals’ carcasses online so hunters can more easily
find their kill. See Yoder v. Bowen, 146 F.4th 516, 520 (6th Cir. 2025) (per curiam) (panel
opinion). The plaintiffs allege that the drone statute violates their First Amendment rights
because it (1) is a content-based speech restriction, (2) violates the speech-inputs doctrine,1 and
(3) unconstitutionally restricts their ability to engage in inherently expressive conduct. Id. at
527. The panel rejected all three arguments and determined that the statute survived
intermediate scrutiny. See id.
I write separately because I have concerns about the panel’s reasoning related to the
speech-inputs doctrine. The Supreme Court has indicated that “heightened scrutiny”—
something more than O’Brien intermediate scrutiny2—applies when the government seeks to ban
the means to create speech. See Sorrell v. IMS Health Inc., 564 U.S. 552, 557, 564–65 (2011)
(noting that a Vermont statute banning the sale of certain pharmaceutical data effectively banned
certain entities from speaking with physicians and pharmaceutical companies and was therefore
subject to “heightened scrutiny”). For example, if a State enacted a statute banning the
ownership of pens and paper, the statute would likely violate the First Amendment under the
speech-inputs doctrine because it would restrict the ability to express thoughts through
1We have referred to a type of protected speech as “speech inputs,” see Lichtenstein v. Hargett, 83 F.4th
575, 585 (6th Cir. 2023), but it goes by different names in different jurisdictions. The Tenth Circuit, for example,
has referred to it as “the protected creation of speech,” W. Watersheds Project v. Michael, 869 F.3d 1189, 1195–96
(10th Cir. 2017), and the Supreme Court has referred to it as “[s]peech in aid of” protected speech, Sorrell v. IMS
Health Inc., 564 U.S. 552, 557 (2011).
2United States v. O’Brien, 391 U.S. 367 (1968).

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handwriting. Here, drone-obtained information may be analogous to pens and paper because it
provides what the plaintiffs allege is a critical input needed for Drone Deer Recovery’s speech to
hunters. But the panel declined to apply Sorrell’s more rigorous level of review.
The panel’s error may be understandable given the confused state of the speech-inputs
doctrine following Sorrell. After all, that case is far from a model of clarity. The words
“heightened scrutiny” have sometimes been considered synonymous with “intermediate
scrutiny.” See, e.g., United States v. Skrmetti, 145 S. Ct. 1816, 1828–29 (2025). But Sorrell also
tells us that the statute at issue in that case “enact[ed] content- and speaker-based restrictions on
the sale, disclosure, and use of prescriber-identifying information.” Sorrell, 564 U.S. at 563–64.
Content-based speech restrictions are normally subject to strict scrutiny. See, e.g., Free Speech
Coal., Inc. v. Paxton, 145 S. Ct. 2291, 2302 (2025). Meanwhile, Sorrell did not find the statute’s
content-based speech restriction to be dispositive and proceeds to apply Central Hudson’s
commercial speech test, Sorrell, 564 U.S. at 571–72, which is an entirely different inquiry from
strict or intermediate scrutiny, see, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 495–
500 (1996).
I am not alone in finding Sorrell to be unclear. Several commentators have noted that
Sorrell’s precise standard of review is a mystery. See, e.g., Samantha Rauer, Note and
Comment, When the First Amendment and Public Health Collide: The Court’s Increasingly
Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech, 38 Am.
J.L. & Med. 690, 704 (2012) (“Based on these cases, it is unclear as to whether there truly is any
distinction between the final prongs of Central Hudson and the strict scrutiny least-restrictive
means requirement.”); Agatha M. Cole, Comment, Internet Advertising After Sorrell v. IMS
Health: A Discussion on Data Privacy & the First Amendment, 30 Cardozo Arts & Ent. L.J. 283,
307–08 (2012) (“[I]t is unclear exactly how Sorrell’s ‘heightened scrutiny’ standard compares to
the three generally recognized levels of scrutiny belonging to First Amendment jurisprudence
(rational basis review, intermediate scrutiny, and strict scrutiny).”); Hunter B. Thomson, Whither
Central Hudson? Commercial Speech in the Wake of Sorrell v. IMS Health, 47 Colum. J.L. &
Soc. Probs. 171, 173 (2013) (referring to the “unclear implications of Sorrell”).

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Sorrell is also unclear in the degree to which a speech input needs to be restricted before
the doctrine comes into play. On the one hand, it seems like banning all pens and paper would
easily violate the doctrine because that would outlaw the handwritten word. By contrast, a
restriction on the use of a specific chemical in printer ink might not because printer ink still
remains readily available. But Sorrell does not give us any direction on how to distinguish
between the two types of regulation.
And, as a third point of confusion, the Supreme Court has never clarified how exclusively
dedicated to creating speech the input must be before it receives some level of scrutiny under the
First Amendment. When technology may be employed for purposes other than the generation of
speech, those other uses perhaps may attenuate the level of protection for speech associated with
use of the technology. Is a drone a speech input? Is a microchip inside the drone that is vital to
its functioning?
Sorrell leaves more questions than answers, and the panel only added to the confusion.
The panel determined that drones are not speech inputs, and then applied intermediate scrutiny
anyway. Yoder, 146 F.4th at 528–30. But if the drones are not speech inputs, then it’s unclear
why any level of scrutiny would apply. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 797 (1985) (if the activity at issue is not protected by the First Amendment, a court
“need go no further”).
The panel seeks to distinguish this case from speech-inputs precedents because Drone
Deer Recovery’s speech is not political. Yoder, 146 F.4th at 528–29. But the alleged wrong
from prohibiting drone usage does not depend on whether the speech is political. Rather, the
constitutional violation from banning a speech input arises when the restriction effectively
abolishes the speech altogether. It is one thing to say that business-related speech, once
expressed, may have less First Amendment protection than political speech; it is quite another
thing to deprive the speaker of the means for expressing its speech in the first place.
The panel said that the speech-inputs doctrine applies only to core political speech
because our opinion in Lichtenstein v. Hargett, 83 F.4th 575 (6th Cir. 2023), primarily discussed
cases involving core political speech. See Yoder, 146 F.4th at 528–29; see generally

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Lichtenstein, 83 F.4th at 584–88. But Lichtenstein does not limit its reasoning to core political
speech, and the Supreme Court’s reasoning in Sorrell casts doubt on the panel’s attempt to
impose such a limitation on the speech-inputs doctrine.
In Sorrell, the Supreme Court held that a Vermont statute “restrict[ing] the sale,
disclosure, and use of pharmacy records that reveal the prescribing practices of individual
doctors” was unconstitutional because it “imposed a restriction on access to information” that
could be used “in aid of pharmaceutical marketing”—i.e., it limited access to a critical speech
input for pharmaceutical marketing. 564 U.S. at 557, 568. That case involved a statute
completely divorced from politics, yet the Court still applied the speech-inputs doctrine. And in
fact, the central authority for Lichtenstein came from the Court’s striking down the commercial
speech restriction in Sorrell. So the panel was mistaken to the extent that it sought to distinguish
Sorrell based on the non-political nature of Drone Deer Recovery’s speech.3
The panel also attempted to distinguish Sorrell because the law in that case was not
content neutral, given that the Sorrell statute allowed prescribing information to be used for
some purposes but not others. But the drone statute similarly restricts a speech input based on
the content of its use. The law forbids employing drones to obtain and deliver the location of
felled game. But the law allows drones to deliver any other kind of information. For example,
the statute apparently does not prohibit using drones to obtain and deliver data about the number
and types of trees, the location of trails, etc. The drone statute thus regulates the speech input
based on the content of speech for which the information will be employed. This is a content-
based regulation much like in Sorrell.
We thus must apply Sorrell to this case. But what is the standard that Sorrell requires us
to apply? I believe, based on the speech-inputs doctrine, it may be a higher level of review than
the panel applied.
3As an aside, I struggle to see how the panel’s distinction between political speech and non-political speech
would matter here, given that the drone statute seems to regulate political speech as well. The drone statute would
appear to apply equally to political speech. For example, the law would also foil the speech of animal rights
activists who want to track down felled game and use it to protest animal cruelty—a quintessential form of political
speech. See, e.g., Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (political speech case involving
an animal rights group that surreptitiously recorded a dairy farmer to expose abusive practices).

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The panel’s rejection of the speech-inputs doctrine may portend a split between our
circuit and the Fourth and Ninth Circuits. In an opinion that came down after the plaintiffs
petitioned for rehearing en banc, the Ninth Circuit concluded that an ordinance banning
observing sideshows (a form of reckless driving in an intersection) was unconstitutional because
it inhibits “the process of creating a form of pure speech.” Garcia v. Cnty. of Alameda, No. 24-
6814, 2025 WL 2536693, at *4 (9th Cir. Sept. 4, 2025). The court explained that, even though
observing a sideshow might be a restriction on conduct, it was entitled to First Amendment
protection because it regulated “a predicate for . . . recording of those events,” meaning that it
essentially outlawed a speech-input. Id. at *5.4 Meanwhile, the Fourth Circuit has held that a
statute banning organizations from planting moles (i.e., undercover spies) in farms and
slaughterhouses bans a speech input because it “prevents an undercover employee from
publishing a critical article based on any notes she takes of documents or policies laid out in a
breakroom.” People for the Ethical Treatment of Animals, Inc. v. N. Carolina Farm Bureau
Fed’n, Inc., 60 F.4th 815, 828 (4th Cir.), cert. denied, 144 S. Ct. 325 (2023), and cert. denied sub
nom. Stein v. People for the Ethical Treatment of Animals, Inc., 144 S. Ct. 326 (2023) (PETA).
The statutes in Garcia and PETA are a bit afield of the facts of this case, but the panel’s
reasoning may be difficult to square with those cases. If observing employees in a
slaughterhouse or watching reckless drivers in an intersection are speech inputs governed by
Sorrell, then it would appear that observing animals via a drone would also be such a speech
input. To be sure, the panel might say PETA involved political speech because the plaintiff was
an animal rights advocacy group. See 60 F.4th at 820. But the plaintiff in Garcia was a
transportation reporter, and there is no indication from that case that he was engaged in political
speech. See 2025 WL 2536693, at *2.
If this case began and ended as a hunting-with-drones precedent, it perhaps would not be
worth delving so deeply into the panel’s rationale for its decision. But I worry that the panel’s
opinion may be interpreted to diminish First Amendment protection more broadly, including for
academics and journalists.
4The Supreme Court has held that newsgathering is protected under the First Amendment. See Branzburg
v. Hayes, 408 U.S. 665, 681 (1972).

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Consider how the panel’s reasoning could be employed to diminish academic freedom.
Many academic studies rely on recorded interviews. See, e.g., Clark D. Cunningham, Evaluating
Effective Lawyer-Client Communication: An International Project Moving from Research to
Reform, 67 Fordham L. Rev. 1959, 1966 (1999). A State could theoretically enact a statute
banning the recording of interviews between a healthcare provider and a patient. This
prohibition would make it unlawful, for example, to use recorded interviews in a study
examining whether psychologists can convince children to remember traumatic events that did
not happen. Such a study could radically change the way we consider witness testimony in many
criminal trials. And yet, employing reasoning similar to the panel’s rationale here, a State’s
transparent attempt to stifle that research could be subject to mere O’Brien intermediate scrutiny
because (1) a psychology paper is not political speech, and (2) the statute only restricts
employment of a particular technology (a recording device) that can be analogized to the drone
usage in this case.
The potential effects of the panel’s reasoning could be similarly problematic for
journalists. Consider a statute that bans audio or video recorded interviews altogether. If a
journalist wanted to document, for example, eyewitness accounts of athletes who gambled on
their own games, this statute would effectively ban that form of journalism that relates to a
non-political topic. See, e.g., Ronald Blum, MLB Investigating Gambling, Theft
Allegations Involving Shohei Ohtani and Interpreter Ippei Mizuhara, Associated Press (Mar. 22,
2024), https://apnews.com/article/ohtani-mizuhari-mlb-784e2301d1259c0828f7a3c7af9580f0
[https://perma.cc/5C5W-5DMW]. And yet, even though journalism (muckraking in particular) is
one of the First Amendment’s central concerns, a statute restricting these journalists’ recordings
would be subject only to O’Brien intermediate scrutiny simply because (1) the interview does not
involve political speech and (2) the law did not ban the interview itself but only particular ways
of recording the interview. Using the rationale advanced to defend the drone statute—that the
drone statute only bans a particular technology to gather information but leaves in place
traditional methods for tracking killed prey—one could argue that banning video and audio
recordings of interviews is acceptable because the journalist can still use the traditional pen-and-
paper method to memorialize those interviews.

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These two hypotheticals cover academic research and journalism—areas that are
supposed to receive the highest levels of First Amendment protection, even when they do not
implicate political speech. See, e.g., The Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989) (applying
strict scrutiny to statute limiting a journalist’s ability to publish the name of a sexual assault
victim); Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967) (“Our
Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to
all of us and not merely to the teachers concerned. That freedom is therefore a special concern
of the First Amendment.”). And yet, under the panel’s reasoning, they may receive only O’Brien
intermediate scrutiny—with significant consequences, indeed.
That said, although I have concerns about the panel’s opinion, I do not think that this case
is a viable candidate for rehearing en banc. The panel’s reasoning stems from a difficult-to-
interpret Supreme Court opinion, and we are powerless to modify the directives from a
controlling Supreme Court opinion in any way. See, e.g., Mallory v. Norfolk S. Ry. Co., 600 U.S.
122, 136 (2023). So all that is left to do is wait for further guidance from the Supreme Court.
I cannot blame the panel opinion for its attempt to sort through confusing Supreme Court
precedent. After all, Sorrell appears to call for O’Brien intermediate scrutiny, strict scrutiny, and
Central Hudson scrutiny, all at the same time. Sorrell, 564 U.S. at 557, 563–64, 571–72. Thus,
three people could theoretically argue in favor of each separate standard of review, and Sorrell
would provide equally strong support for each position. But I am still concerned that the panel’s
reasoning in this case might cause problems down the road. Ultimately, I hope that the Supreme
Court will give plenary consideration to this case or one like it to clarify the parameters of the
speech-inputs doctrine.
ENTERED BY ORDER OF THE COURT
___________________________________
Kelly L. Stephens, Clerk

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