On June 24, the Goldwater Institute asked the U.S. Supreme Court to hear the case that it filed (and lost) against the FAA, in which it sought to reverse the FAA’s action that shut down the flight-sharing website Flytenow. The website connects pilots with passengers who are willing to share expenses to travel with pilots on pre-planned flights. FAA regulations permit sharing of expenses, as long as the pilots and passengers are traveling to the same destination and the pilot isn’t planning the trip solely to fulfill the passenger’s travel needs. 

According to the institute, “The court below upheld an action by the FAA that prohibits pilots from doing what they have lawfully done since the beginning of general aviation—sharing expenses with their passengers—because in this instance pilots used the Internet to communicate. In a world where communications are increasingly posted online, rather than on airport bulletin boards, the circuit court’s decision is dangerously anachronistic. That decision also conflicts with centuries of common law and this Court’s definition of ‘common carrier.’ Additionally, it applies the wrong standard of regulatory review to reach a result that the First Amendment directly prohibits: forbidding pilots from engaging in truthful communications about a lawful activity.”

Flytenow was forced to close because “the FAA determined that the process of posting a planned trip on a website constituted advertising and that subjected the pilots to the same onerous regulations that pilots for a commercial airline like Delta would have to meet,” the institute explained. 

“The sharing economy is based on communication—it is about using technology to connect service providers to consumers,” said Jon Riches, national litigation director at the Goldwater Institute and the attorney representing Flytenow. “Flytenow is simply a communications hub; it connects pilots looking to share their flights with passengers interested in joining them. In this case, the FAA has stopped pilots from using the Internet, and only the Internet, to communicate. The First Amendment does not tolerate this type of speech discrimination.”