This Picture Could Be A Crime.

Last week we talked about the mascot of the United States Air Force Academy being injured in a “prank” gone bad between the Air Force Academy and the Cadets at the United States Military Academy at West Point. We ran an image of the injured falcon to accompany the article and never thought anything about it.

It turns out we may have broken the law.

In 2008 the US Fish Fish and Wildlife Service passed a series of regulations dealing with falconry, which the Service defines as:

Falconry is caring for and training raptors for pursuit of wild game, and hunting wild game with raptors. Falconry includes the taking of raptors from the wild to use in the sport; and caring for, training, and transporting raptors held for falconry.

The rules require that states adopt the rules the Service created or have rules that are at least as strict or more strict. Whatever the Fish and Wildlife Service says, goes.

The Fish and Wildlife Service requires that for a person to practice falconry, they must have a license.

There are provisions in the US Code and the license that require bookkeeping on obtaining, care, transportation and selling of falcons. In that falcons are a threatened species, we can see this regulation as perhaps being positive. After all, if falconers love their birds and their sport, they should want to make sure there are records to protect the illegal trafficking of birds. Those documents should be made available to inspectors at any time. The rules also require that the areas in which birds are housed be open to inspection without notice or warrant.

But here’s the really strange part of the rules:

You may allow photography, filming, or other such uses of falconry raptors to make movies or other sources of information on the practice of falconry or on the biology, ecological roles, and conservation needs of raptors and other migratory birds, though you may not be paid for doing so.

(i) You may not use falconry raptors to make movies, commercials, or in other commercial ventures that are not related to falconry.

(ii) You may not use falconry raptors for commercial entertainment; for advertisements; as a representation of any business, company, corporation, or other organization; or for promotion or endorsement of any products, merchandise, goods, services, meetings, or fairs, with the following exceptions:

(A) You may use a falconry raptor to promote or endorse a nonprofit falconry organization or association.

(B) You may use a falconry raptor to promote or endorse products or endeavors related to falconry, including, but not limited to items such as hoods, telemetry equipment, giant hoods, perches, materials for raptor facilities, falconry training and education materials, and scientific research and publication.

So if a local movie company comes to a falconer and says “we want to use your falcon in a scene for a movie set in medieval times,” the falconer has to say “nope. Sorry! That’s against the law!” If someone wants to take a picture of a falconry falcon for a logo or commercial, the law forbids it.

The laws are based on the content of the speech / expression which is not allowed under the First Amendment.

The Pacific Legal Foundation has filed a lawsuit on behalf of the American Falconry Conservancy against the Fish and Wildlife Service’s restriction on speech as well as making the claim that the requirement to allow inspection of facilities housing falcons is a violation of the prohibition against unreasonable search and seizures under the Fourth Amendment.

In a post, the Pacific Legal Foundation says:

State and federal falcon-speech regulations fall into four categories: (1) generally banning images of falcons in all expression that is not about falcons; (2) specifically banning commercials that feature falcons but are not about falcons; (3) limiting compensation for falcon-related expression; and (4) dictating the content of falcon education programs.

Preventing falconers from photographing their birds or deciding the content of education programs they might present with their birds only does one thing: it prevents speech based on its content—both because the speech features falcons, and because it is not about falcons.

The Supreme Court has held that even horrific depictions of animal cruelty cannot be banned, so long as the underlying activities are legal. There is nothing cruel or illegal about flying falconry birds. Falconers were working in partnership with birds of prey for more than 2,000 years before the federal government decided to get involved. No one doubts that laws like the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act give the government the power to enforce regulations that protect birds from being overworked or abused. But the welfare of a bird is the same whether its owner films the bird in an advertisement for falcon perches (allowed) or for washing machines (not allowed). Banning falconers from contributing to movies, pictures, and commercials unrelated to falconry does nothing to protect migratory birds.

We have tried to think of any reason why the restrictions on speech using falcon images is any legitimate concern of the government. We can’t think of one.

This seems to be another regulation that is based on “because we can and you have to fight it” rather than any legitimate governmental concern over the speech itself.

The lawsuit can be found here.

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