XIZMO MEDIA PRODUCTIONS LLC, Plaintiff, v. CITY OF NEW YORK, Defendant.
21-cv-2160 (ENV) (MMH)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
August 29, 2022
VITALIANO, D.J.
On April 20, 2021, plaintiff Xizmo Media Productions LLC (Xizmo), an aerial cinematography production company, filed this action for declaratory and injunctive relief against defendant City of New York (the City) claiming that New York City Administrative Code § 10-126(c) effectively bans the operation of unmanned aerial vehicles (UAVs or drones) in New York City and is thereby preempted by federal law. Compl., Dkt. 1. Plaintiff also alleges that § 10-126(c) violates the First Amendment by excessively restricting the right to artistic expression through aerial filmmaking. Presently before the Court is the City‘s motion to dismiss the complaint pursuant to
Background1
Xizmo is a Brooklyn-based production company specializing in aerial cinematography using UAVs. Compl. ¶¶ 1, 31. In 2016, Xizmo obtained a Federal Aviation Administration
Xizmo alleges that, despite its FAA certificate and various waivers, its aerial productions have been shut down on multiple occasions by the New York City Police Department (NYPD) pursuant to
It shall be unlawful for any person avigating an aircraft to take off or land, except in an emergency, at any place within the limits of the city other than places of landing designated by the department of transportation or the port of New York authority.
Within this context, aircraft means [a]ny contrivance, now or hereafter invented for avigation or flight in the air . . . ,
Recognizing that the Avigation Law was enacted before drones existed and, on its face, targets only takeoffs and landings, plaintiff asserts nevertheless that the City has adopted an expansive interpretation of it, effectively prohibiting all drone use in New York City and, in
To put more meat on the bones of the complaint, in its first claim, plaintiff contends that the Avigation Law is preempted by federal law under the doctrines of (a) field preemption, because the FAA prescribes rules concerning every facet of UAV operation, and (b) conflict preemption, because the Avigation Law directly conflicts with the FAA‘s (1) authorization of UAV usage pursuant to
Legal Standard
To survive a
Discussion
I. Preemption Claim
The Supremacy Clause of the United States Constitution establishes that federal laws are supreme.
Express preemption occurs when explicit statutory language directs that state law be ousted. Air Transp. Ass‘n of Am., Inc. v. Cuomo, 520 F.3d 218, 220 (2d Cir. 2008). Even in the absence of express preemption by Congress, however, a state or local law may still be preempted under the doctrines of conflict or field preemption. Hillsborough Cnty. v. Automated Med. Lab‘ys, Inc., 471 U.S. 707, 713 (1985). Field preemption
A. The FAA
At the outset, a brief review of the federal scheme governing UAVs is a necessary precursor to the Court‘s preemption analysis. Pursuant to the Air Commerce Act of 1926, [t]he United States Government has exclusive sovereignty of airspace in the United States.
B. Field Preemption
In light of this broad, encompassing grant of authority, Xizmo asserts that the comprehensiveness of federal law relating to aviation safety for UAV operation evinces a national intent to fully occupy the field. Compl. ¶¶ 26, 44. An intent by Congress to make such a determination may be inferred from a framework of regulation so pervasive . . . that Congress left no room for states to supplement it or where there is a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Arizona, 567 U.S. at 399 (quotations omitted).
Applied to this case, while Congress‘s extensive control in the field of civil aviation is beyond dispute, nothing in the FMRA or FAA regulations suggests a federal intent to completely occupy the field of UAV operation and safety. The general declaration in
[C]ertain legal aspects concerning small [UAV] use may be best addressed at the State or local level. . . . The Fact Sheet provides examples of State and local laws affecting [UAVs] for which consultation with the FAA is recommended and those that are likely to fall within State and local government authority. . . . The Fact Sheet also notes that laws traditionally related to State and local police power—including land use, zoning, privacy, trespass, and law enforcement operations—generally are not subject to Federal regulation.2
Relying on these very same statements, other courts have determined that the FAA explicitly contemplates state or local regulation of pilotless aircraft, defeating any possibility that the whole field is exclusive to the federal government. Singer v. City of Newton, 284 F. Supp. 3d 125, 130 (D. Mass. 2017).
Xizmo attempts to discount these clear pronouncements by arguing that the FAA guidance is nuanced and was not intended to, nor did it, broadly authorize state and local UAV flight regulation. Pl. Opp. Mem., Dkt. 19, at 7. But field preemption is an all-or-nothing inquiry; it arises if Congress has developed a framework of regulation so pervasive . . . that Congress left no room for states to supplement it. Arizona, 567 U.S. at 399 (emphasis added). It therefore follows that if some state regulation was expressly contemplated, field preemption would not be activated.3
Equally unavailing are plaintiff‘s attempts to narrowly characterize Singer‘s denial of field preemption as particular to federal regulation in the field of UAV operations for hobbyists, not professional UAV operators like plaintiff. Pl. Opp. Mem. at 7. The Singer
C. Conflict Preemption
Plaintiff‘s second alleged basis for preemption requires closer inspection. Xizmo contends that the Avigation Law, operating as a total UAV ban in the City, is preempted by FAA regulations pursuant to the doctrine of conflict preemption because (1) the City imposes fines under the Law without regard to compliance with UAV certifications or waivers, (2) the Law conflicts with FAA control of Class B airspace, and (3) the Law conflicts with the FAA‘s power to grant remote pilot certifications and waivers. Compl. ¶ 44. Put differently, as plaintiff sees it, Xizmo cannot possibly conduct its business within the authority granted to it by the FAA under that agency‘s regulations without violating the Avigation Law and, thus, the Avigation Law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the FMRA. Arizona, 567 U.S. at 399.
The City counters that plaintiff grossly mischaracterizes the Avigation Law by claiming it operates as a complete UAV ban. Def. Mem. at 7. Rather, according to the City, the Law merely regulates the places that UAVs can take off and land, an aspect of UAV use which the federal regulatory scheme does not expressly cover. Id.
Yet, when viewed in conjunction with the panoply of the FAA‘s existing regulation of UAV flight, and the mission Congress gave it when the FMRA was enacted, the full, restrictive effect of the Avigation Law is made plain. Most significantly, the FAA has imposed visual line of sight requirements under which UAVs must be flown in a manner that allows the remote pilot in command, the visual observer (if one is used), and the person manipulating the flight control of the UAV to see it at all times, without the aid of a visual device.
The City points out that, even with the line of sight restriction, the Avigation Law cannot be deemed a complete ban on UAV use because it permits takeoffs and landings at places designated by the department of transportation or the port of New York authority, and several such sites exist within the City limits. Def. Mem. at 7. In support, the City cites to a webpage, titled Model Aircraft Fields, on the New York City Parks & Recreation Department website.4 This website lists five public parks—two in Brooklyn, two in Queens, and one on Staten Island—that, according to the City, are approved UAV takeoff and landing zones. Nonetheless, nothing on the website suggests that these five locations are, in fact, approved UAV zones. It describes the parks as model aircraft fields, and does not mention UAVs a single time. Without proceeding to discovery, it is unclear if these zones are even suitable for UAV use, let alone properly designated sites within the meaning of the Avigation Law.5
At any rate, even assuming arguendo that these sites are designated places of takeoff and
Significantly, plaintiff‘s characterization of the Avigation Law as a categorical ban on drone use is rendered even more plausible by the City‘s own proclamations. For instance, the webpage titled Drones on the City‘s official website—which consists of only three sentences—states: Call 911 to report a drone in use in New York City . . . It is illegal to fly them in New York City.6 Likewise, the Official Motion Picture – Television Permit issued by the Mayor‘s Office of Media & Entertainment to Xizmo unequivocally states: UNMANNED AIRCRAFT (DRONES) ARE PROHIBITED IN NEW YORK CITY. Pl. Ex. F, Dkt. 20-6. This evidence is also consistent with plaintiff‘s allegation that, on multiple occasions, its aerial productions have been shut down by NYPD, notwithstanding its possession of a FAA certificate and the appropriate waivers. Compl. ¶ 39.
On this point, the District of Massachusetts’ decision in Singer v. City of Newton—the only case of which this Court is aware that addresses conflict preemption in the UAV context—is instructive. Singer involved a municipal ordinance of the city of Newton, Massachusetts, that prohibited, inter alia, UAV flights below an altitude of 400 feet over private property without the property owner‘s permission and UAV flights at any altitude over public property without permission from the city of Newton. 284 F. Supp. 3d. at 131. In finding that the ordinance was preempted by FAA regulations, the court explained that these two provisions worked together
So too here. Though the actual effect of the Avigation Law on drone use must be parsed out in discovery, based on the facts alleged, it is entirely plausible that the Law, especially when viewed in tandem with the FAA‘s line of sight restriction, operates as a wholesale ban on drone use that impedes the FAA‘s and Congress‘s ability to safely and effectively integrate UAVs into the national airspace.
For this same reason, Xizmo has also sufficiently alleged that the Avigation Law conflicts with the FAA‘s control of Class B airspace. The City, for its part, contends that the Avigation Law cannot be preempted on this ground because it does not regulate any airspace at all, let alone Class B airspace. However, as just explained, that interpretation ignores both the City‘s proclaimed intention to outlaw UAVs and the Law‘s critical interaction with the FAA‘s line of sight restriction. The majority of New York City airspace is Class B, see Kostakis Aff., Dkt. 20, at ¶ 15, and the Avigation Law effectively disallows flight in a substantial amount (if not all) of that airspace.7 This conflict thus has the immediate consequence of rendering
Finally, because the Law renders FAA remote pilot certifications and waivers effectively meaningless, Xizmo has also plausibly alleged that it conflicts with the FAA‘s power to grant such authorizations. Again, both Xizmo‘s FAA remote pilot certifications, which authorize UAV flight pursuant to the strictures of
Nor is this conclusion affected by the New York County Criminal Court‘s decision in People v. Santoriello, 180 Misc. 2d 533, 689 N.Y.S.2d 388 (N.Y.C. Crim. Ct. 1999). In that case, the same Avigation Law challenged by Xizmo—
To summarize, although it remains to be seen whether the Avigation Law actually conflicts with federal law, such a finding is clearly plausible—and, indeed, upon a plain reading of the applicable regulations and the City‘s website, is likely—under the facts alleged. Accordingly, Xizmo may proceed with its first claim on a conflict preemption basis, and defendant‘s motion to dismiss count one is denied.
II. First Amendment Claim
In its second and final cause of action, Xizmo alleges that the Avigation Law violates its First Amendment rights. For this to be true, plaintiff must plausibly allege that (1) its UAV filmmaking is protected expressive activity, and (2) the Avigation Law, as an indisputably content neutral ordinance, cannot withstand intermediate First Amendment scrutiny. See Mastrovincenzo v. City of New York, 435 F.3d 78, 90-91, 97 (2d Cir. 2006).
It has long been established that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).
Fundamentally, motion pictures are a significant medium for the communication of ideas that affect public attitudes and behavior in a variety of ways, regardless of whether they are designed to entertain or to inform. Id. at 501.
Here, however, Xizmo‘s allegedly curtailed expression is not a film itself, but rather the act of filming a motion picture or television program through use of UAVs. While some circuits have recognized that the First Amendment protects the act of making film, neither the Supreme Court nor this Circuit has explicitly held the same. Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); see also American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010).
At the same time, the Supreme Court has made it unequivocally clear that the Constitution looks beyond written or spoken words as mediums of expression. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995). But because there is some kernel of expression in every activity a person undertakes, City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989), First Amendment protection extends only to conduct that is inherently expressive, Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006). Applying these principles, the Court has found that inherently expressive conduct such as nude dancing, see City of Erie v. Pop‘s A.M., 529 U.S. 277, 289 (2000), the selection and transmission of cable television programs,
Tasked to determine if particular conduct is sufficiently expressive to implicate the First Amendment, the Court has historically asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. Texas v. Johnson, 491 U.S. 397, 404 (1989) (cleaned up). More recently, however, the Court has eased away from a strict particularized message requirement, holding that a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a particularized message, would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll. Hurley, 515 U.S. at 569 (cleaned up).
Under this framework, plaintiff has sufficiently alleged that its use of drones for aerial cinematography is expressive activity protected by the First Amendment. Although, as noted, the Second Circuit has never explicitly held that filmmaking is expressive speech, such a rule is plainly consistent with—if not mandated by—the Supreme Court‘s First Amendment jurisprudence protecting not only the final form of expression, but also its medium and the iterative steps used in the creative process. Price v. Barr, 514 F. Supp. 3d 171, 185 (D.D.C. 2021). Indeed, as stated by the Supreme Court, regulation of a medium inevitably affects communication itself. Gilleo, 512 U.S. at 48; see also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58 (1975) (By its nature, theater . . . frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard.). Thus, although filmmaking—like writing or
The City does not effectively argue otherwise. Instead, it simply contends that plaintiff has not alleged that its use of UAVs communicates any particularized message and, even if a particularized message was intended, it could not be discerned by anyone witnessing the conduct of flying UAVs. The City‘s position misses the forest for the trees, oversimplifying both the scope of the First Amendment and the nature of Xizmo‘s at-issue conduct.
For one, Xizmo describes itself as a full-service production company specializing in aerial cinematography and alleges that it uses drones in New York City for purposes of filmmaking. Compl. ¶¶ 1, 31. Contrary to the City‘s contention, these allegations, standing alone, render it plausible that plaintiff‘s use of UAVs is intended to communicate a particularized political, social, or religious message since, as already noted, films, by their very nature, affect public attitudes and behavior in a variety of ways, ranging from direct espousal of social doctrine to the subtle shaping of thought which characterizes all artistic expression. Joseph Burstyn, 522 U.S. at 501.9
Though the City presses this point mightily, a different conclusion is not warranted simply because the specific expressive messages interwoven in Xizmo‘s conduct are not immediately obvious to a person witnessing its drones fly through the New York City sky. Xizmo does not argue that the act of flying drones, on its own, conveys a discernable message to its viewers. As explained, its First Amendment claim rests on the basis that aerial cinematography is inseparably intertwined with each director‘s, producer‘s, actor‘s, and journalist‘s particularized message. Pl. Opp. Mem. at 11 (quoting Young, 903 F.2d at 153). The City‘s argument thus focuses too narrowly on Xizmo‘s literal operation of UAVs, rather than on their role in the filmmaking process, a process which, by generating expressive film with a particularized, discernable message, is constitutionally protected. In fact, applying the City‘s logic, the act of writing a novel would be excluded from First Amendment protection unless the
Finally, it is inconsequential that the Avigation Law does not directly address the protected activity of filmmaking; it may still run afoul of the First Amendment to the extent that it does so indirectly. The fact that [a] statute‘s practical effect may be to discourage protected speech is sufficient to categorize [it] as an infringement on First Amendment activities. Fed. Election Comm‘n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 255 (1986). First Amendment scrutiny still applies to statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities. Arcara v. Cloud Books, Inc., 478 U.S. 697, 704 (1986); see also Minneapolis Star & Tribune Co. v. Minn. Comm‘r of Revenue, 460 U.S. 575 (1983) (holding that a tax imposed on the consumption of large quantities of newsprint and ink violated the First Amendment by effectively singling out newspapers to bear the burden). For the reasons explained above, Xizmo has plausibly alleged that the Avigation Law operates in a similar way, indirectly suppressing protected filmmaking in New York City by banning aerial cinematography via drones.
B. Intermediate Scrutiny
Of course, the First Amendment inquiry does not end there. To survive the City‘s motion to dismiss, Xizmo must also set forth facts that, if true, adequately establish that the Avigation Law—which the parties agree is content-neutral—violates intermediate scrutiny. Under intermediate scrutiny, a content-neutral regulation may restrict the time, place, and manner of protected speech, provided it is narrowly tailored to serve a significant governmental
To satisfy the first requirement of being narrowly tailored to serve a significant governmental interest, the law must advance an important or substantial governmental interest that is unrelated to the suppression of free speech, and its incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest. Turner Broad. Sys., 512 U.S. at 662 (cleaned up). Under this standard, the law need not be the least speech-restrictive means of advancing the Government‘s interests, id.; what matters is whether the regulation promotes a governmental interest that would be achieved less effectively absent the regulation, Ward, 491 U.S. at 799 (quotations omitted). At the same time, however, the law may not burden substantially more speech than is necessary to further the government‘s legitimate interests. Id.
In arguing that the Avigation Law satisfies this requirement, the City asserts that in a densely populated city like New York, which is filled with skyscrapers and surrounded by three airports, it is necessary and logical to limit takeoff and landing sites in order to maintain the safety and security of the City. Def. Mem. at 14. Delivering a death blow, however, the City does not even attempt to elaborate on what specific safety and security interests are implicated when FAA-certified pilots operate UAVs outside of the five public parks that the City claims to be designated take-off and landing areas. Nor does it explain how the three-quarters of a century-old Avigation Law, enacted the same year that JFK, then-Idlewild Airport, opened its doors and ten years before the FAA was created, is intended to curb any such safety risks. Without more, the City‘s generalized interests of safety and security are too nebulous to show that, as a matter of law, the Avigation Law is narrowly tailored. See, e.g., Turner Broad. Sys.,
Going a step further, given the ample precautions that concurrently operate at the federal level, it cannot be said that the City‘s generalized safety interest would be achieved less effectively absent the regulation. Ward, 491 U.S. at 799. For instance, UAV flight is prohibited in Class B airspace (absent individual FAA authorization) which in turn means that UAV flight is prohibited in the majority of the City and around all of the surrounding airports.10
Although the City‘s motion to dismiss plaintiff‘s First Amendment claim fails on this basis alone, Xizmo has also plausibly alleged that the Avigation Law misfires constitutionally because it does not leave open ample alternative channels for communication. Ward, 491 U.S. at 791. While the alternative channels need not be perfect substitutes, Mastrovincenzo, 435 F.3d at 101, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate, Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984). That is, the alternative avenues of expression must be more than merely theoretically available and realistic. Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000) (citing Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85, 93 (1977)).
On this point, the City suggests that helicopters, cranes, and filming from the top of buildings are sufficient aerial cinematography alternatives to UAVs. Plaintiff responds by arguing that both helicopters and cranes are more expensive than UAVs, and, as such, they are not a practical option for many directors. See Pl. Opp. Mem. at 14; Kostakis Aff. ¶¶ 20, 22. In addition, plaintiff contends that all three alternatives cannot capture the same range of shots as UAVs and are therefore significantly less effective at conveying a director‘s message. Kostakis Aff. ¶¶ 21-22; see Linmark, 431 U.S. at 93 (holding that ban on For Sale signs did not leave open ample alternatives where remaining options, like newspaper advertising, involved more cost and less autonomy and may be less effective media for communicating the message conveyed by a For Sale sign). Beyond the prima facie persuasiveness of plaintiff‘s responses, the City‘s asserted alternatives ultimately implicate factual issues that cannot be resolved on a
Nor does the purported availability of five designated take-off and landing sites satisfy the ample alternative requirement as a matter of law. Even assuming arguendo that UAV use is permitted at these allegedly designated areas in a handful of City parks, filming Rockaway Beach from Marine Park, for instance, is not comparable to filming the world-renowned skyscrapers of Manhattan. See Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 347 (S.D.N.Y. 1998) (The requirement that potential alternatives be ‘ample’ requires a nuanced analysis that may take account of (1) the audience to which the speaker seeks to communicate and (2) the contribution of the desired location to the meaning of the speech. (emphasis added) (citations omitted)). Just as holding a protest calling for an end to the violence and conflict in communities of color on Randall‘s Island cannot communicate the same message as holding the identical protest march on Malcolm X Boulevard in Harlem, filming in the five remote Brooklyn, Queens, and Staten Island locations cannot communicate the same message as filming in Manhattan. See, e.g., Safir, 18 F. Supp. 2d at 336, 348. Likewise, as plaintiff points out, film and journalism consumers typically associate New York with its soaring skyscrapers, bustling streets, and historic locations, which makes filming in Manhattan all the more important for those seeking to convey New York-specific messages. Pl. Opp. Mem. at 15.
The short of it is simply this: because it remains to be seen whether the Avigation Law, at least, as applied to UAV pilots with FAA certification and the appropriate waivers, is narrowly tailored to serve a significant governmental interest and leave[s] open ample alternative channels of communication, it cannot be held, as a matter of law, that intermediate
Conclusion
For the foregoing reasons, defendant‘s motion to dismiss is denied. Plaintiff may proceed with its conflict preemption claim and First Amendment claim.
The parties are directed to contact the chambers of Magistrate Judge Marcia M. Henry to arrange for further pretrial management of this case.
So Ordered.
Dated: Brooklyn, New York
August 25, 2022
/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge
Notes
No person shall voluntarily bring, land or cause to alight within or upon any park, any airplane, hot air balloon, parachute, hang glider, or other aerial device, except that certain areas may be designated appropriate landing places for medical evacuation helicopters.