“Is this picture of a falcon illegal?”

Animal-welfare regulation vs. rights of expression: “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.” So many different First Amendment problems there, and now “a new lawsuit filed by Pacific Legal Foundation on behalf of the American Falconry Conservancy and its members aims to strike down those anti-speech regulations.” [Jim Manley, Pacific Legal]

11 Comments

  • Is this a satire? Even before turning to the First Amendment (which should be a slam dunk)– what justification do Federal authorities offer for restricting photos of falcons?

    • I was also confused. Pacific Legal Foundation has several pages about the suit, but I had to go digging to find the complaint (https://pacificlegal.org/documents/complaint-4/).

      Apparently, some regulations passed to enforce the Migratory Bird Treaty Act authorize warrantless searches of falconry “facilities,” and another part of the regulations prohibit using photographs or films of falcons in ventures that are not about falconry.

      The State of California evidently passed regulations that mirror the federal regulations.

      In looking at the regulations cited, sure enough, they say:

      (9)Other educational uses of falconry raptors. 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.

      • Part of the regulations passed by Fish and Wildlife Service require that states have laws that are the same or stricter than the ones passed by the FWS.

        I think the “warrantless search” angle is a bit of a stretch.

        Falcons and eagles are protected animals. They are not able to be domesticated. If you want to keep these animals in captivity, there is a part of me that says the state should be able to inspect the health, records and habitat of the birds in order to protect the birds themselves.

        To illustrate, a few weeks ago prior to a football game, the US Military Academy at West Point stole from an officer’s housing a 22 year old female falcon that is one of the mascots of the Air Force Academy.

        The bird was severely injured in the bird-napping and there was genuine fear the bird may have had to be euthanized. The injury to the bird occurred because of the lack of experience, training and facilities of the cadets who took the bird and in the housing used once the bird once it was taken.

        Experience has shown that people who don’t know what they are doing with falcons end up killing the bird. That’s why a license is required and why the state inspects.

        Is that a slippery slope? Yes it is and that is why I have reservations about it.

        Still, when it comes to protecting the birds or allowing them to be abused behind closed doors, I am going to side with the birds every time.

        • The problem, of course, is the very reasoning–let’s toss Constitutional protections simply because a bird may get hurt. Obviously, there are situations where the government gets to condition the prior waiver of a constitutional right–e.g.. train engineers. This idea, of course, is that there is a public function and the potential for mass casualties.

          Notwithstanding the “for the birds” argument (a variation on the “for the children”), falconry, a pastime from time immemorial is private by nature. Thus, it doesn’t seem that the government has the right to do this in the face of the Fourth Amendment.

          • SPO,

            I am not sure that any Constitutional protections are being tossed.

            First, in order to get a license, you have to agree to the inspections. If you waive the right, I don’t see that as being “tossed.”

            There are many licensed activities that require inspections. You mention a train engineer. I would also include foster homes where children are held on a temporary basis. Foster parents waive their rights to make sure kids are being taken care of.

            We can argue whether there is a difference between kids and birds, but the fundamental point is still the applicant voluntarily waived the right.

            The actual problem I see with this is not the inspection itself (it goes without saying the photography issue is nuts) but while the rules appear to be designed to protect a threatened species, what happens when the species is no longer “threatened?” At one point in time, many falcons were on the endangered list. Clearly we are doing something right to protect the species and moving in the right direction (“endangered” to “threatened.” What happens when the species moves off the “threatened list? Will the Fish and Wildlife Service change the inspection rules?

            Personally, I doubt it.

            I understand what you are saying, but I am just not sure that agreeing to something and then claiming that what you agreed to is somehow a “violation of a right” makes sense. Challenge the requirement before you sign on the dotted line.

    • One can only suppose that that there are well documented cases of large numbers of falcons working long hours under harsh conditions as photographic models and dying as a result.

      • Or at least not paying union dues.

  • This thing that is sad about all of this is that lawyers, presumably, looked at these regs and blessed them, and apparently, the lawyers didn’t consider the First Amendment ramifications of any of this.

    • Or the government’s lawyers just don’t care. They will not be subject to any penalty for any egregious regulation they recommend, thanks to qualified immunity.

      As Montesquieu observed:

      “It is an eternal experience that every man who has power is drawn to abuse it; he proceeds until he finds the limits.”

      The only limit here is that the regulations are overturned by the courts. Then those responsible for the regulations are free to enact the next outrage that they think will give them the absolute power they seek.

  • I wonder if the intention here was not to ban the use of images of falcons in general but rather to regulate the uses which may be made of the small number of falcons allowed to be kept in captivity? In other words, if you take a photo of a wild falcon through a telephoto lense, you can do whatever you like with that photo. If, however, you are someone who is licensed to keep falcons in captivity, you can only do so for limited purposes, which do not include using them as photographic models.

  • Does the Atlanta NFL team know about this?

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