Court Recognizes First Amendment Right to Use Drones for Newsgathering, Voids Texas Restrictions

Yesterday’s National Press Photographers Ass’n. McCraw (W.D. Tex.Robert Pitman, Judge, ruled that Texas laws restricting drone photography are unconstitutional. This is a quick summary of the statutes.

Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use “an unmanned aircraft to capture an image of an individual or privately owned real property … with the intent to conduct surveillance on the individual or property captured in the image.” While Section 423.002 does exempt certain UAV uses from the Surveillance Provisions, it does not exclude newsgathering. Exemptions include “professional or scholarly research and development or … on behalf of an institution of higher education.” …

Texas Government Code Sections 423.045 and 433.046 (“No Fly Provisions”) make flying UAVs above a Correctional Facility, Detention Facility or Critical Infrastructure Facility (or “Sports Venue”) illegal. The definitions of “critical infrastructure” include petroleum refineries and petroleum and alumina refineries as well as water treatment and chemical manufacturing facilities. Through legislative amendments, 2017 saw the expansion of critical infrastructure, including animal feeding operations, drilling locations and chemical production plants. A “sports venue” is defined by the 2017 amendments as any stadium, auto racetrack, coliseum or other structure that can accommodate more than 30,000. It also includes any “primarily used” facility for one or more amateur or professional sport events. According to the plaintiffs, when combined with Federal Aviation Administration (“FAA”) regulations that UAVs must fly lower than 400 feet, these No-Fly Provisions ban UAVs in the designated locations. Certain UAV operators are exempted by the No-Fly Provisions, even those who have a commercial purpose.

Court ruled that drone photography was protected by the First Amendment.

The Fifth Circuit noted in the context of filmmaking that the First Amendment covers the act. However, there is no First Amendment distinction between creating speech or making films. Courts have not recognized any distinction between creating pure speech forms (such as writing and painting) or their products (essays or artwork), in the First Amendment protection.

Plaintiffs have shown that Chapter 423 limits the use of drones for recording news and therefore restricts the ability to share the information. Drones might be limited by budgetary or other restrictions in order to capture certain events. This is not disputed. Defendants assert that other options—namely expensive helicopters—can fill the same role in facilitating news production. They cannot ignore the safety and extreme cost differences that these technologies offer. Pappalardo as well as the other plaintiffs have claimed that drones were central to their journalism pursuits. This is a claim which the Defendants don’t dispute.

Court ruled that restrictions were content-based, and therefore subject to rigorous scrutiny.

Both the Surveillance and No-Fly Provisions regulate on the basis of content. Surveillance Provisions requires that the investigating official inquire into the images to see if they are prohibited. These provisions are only applicable to images of people and private property. While drone photography can be done when the subject of the photograph is public property or an individual, it is not permitted to disclose, display or distribute the images when they are private or personal property. According to the statute, images are classified according to their content. Each category is subjected “to different restrictions.” In order to decide whether the drone picture is permitted under the statute’s provisions, an official needs to first determine the subject matter. Therefore, it is the content of the image that determines its permissibility—the definition of a content-based restriction.

By limiting the legality and use of images according to their intended purpose, No-Fly Provisions can also be subject to scrutiny. These laws are under strict scrutiny regardless of how they define controlled speech according to a specific subject or function. Expression that is otherwise forbidden by the No-Fly Provisions can be permitted if it’s “used for commercial purposes.” Calzada as well Wade point out that journalists cannot fly drones over Nelson Wolff Stadium, and Globe Life Park. But Wade was hired by the Rangers to take the very same images of Globe Life Park “for their own public relations purposes”—that he was “not permitted to share … with members of the news media.” Also, here, the purpose is what determines whether the speech can be legalized. The key to the applicability of both Surveillance or No-Fly Provisions is their subject. Both are content-based and therefore subject to strict scrutiny according the First Amendment.

Surveillance Provisions can be subject to separate scrutiny because they discriminate on the basis of speaker’s identity. If a regulation discriminates against speakers, it may be a content-based restraint. It has been criticized by the Supreme Court that “[s]Peech restrictions that are based on speaker’s identity can often be used to restrict speech but they also serve as a way of controlling content. A comprehensive list is provided in Section 423.003 that lists individuals who are not prohibited from using drones. Journalists are not included on the list, but professors and students appear there. As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist….

The court ruled that law was not subject to strict scrutiny.

The burden of proof that Chapter 423 protects any identifiable interests is not on the defendants. State legislators claimed that the law would safeguard private property and individual privacy as well the safety of crucial infrastructure facilities.

However, the Defendants failed to show that these other means were sufficient to adequately protect their interests. Plaintiffs point out that the Defendants possess a range of tools to safeguard privacy and private property from drone use, including Chapter 423. UAV recordings can be protected by the Texas criminal trespass statute and recording and voyeurism laws, as well as tort claims that include intrusion upon seclusion. Safety of critical facilities: It’s already a Texas felony to damage, interrupt, or impair critical infrastructure. Because defendants failed to find any interest unprotected by Chapter 423, they cannot claim that the provision is “actually required.” Indeed, “[m]”Erespeculation of harm is not a state interest compelling.” …

Surveillance and No-Fly Provisions [also]Overinclusive, and so too wide because they “unnecessarily constrain”.[s]”Protected expression.” Plaintiffs have established that Chapter 423 effectively outlaws the use of UAVs for newsgathering on private property—constituting 95 percent of the state. Plaintiffs also note that Surveillance Provisions “prevent” the use of UAVs for newsgathering.[]Drones can be used by journalists to capture many scenes which could not have been captured from a helicopter or could be easily seen and recorded by anyone on public property. Wade explained that even though Wade is physically on public property, he violates the law by photographing private property or any person who lives there. The No-Fly Provisions prohibit drones from being used, even if they are “indisputably doing so”.[]”Those risks are not as high as those claimed by the State.” In particular, restrictions on recording empty stadiums seem to belie explanation, and Defendants have done nothing to alter this impression….

Surveillance and No-Fly Provisions may also be considered inadequate due to the provision of exemptions for UAVs which pose similar risks as journalism. Chapter 423’s exceptions would be sufficient to protect privacy and safety.[e] appreciable damage to [the government’s] interest unprohibited.” Surveillance Provisions forbid 21 use of drones. This does not eliminate privacy concerns associated with newsgathering. The exceptions are therefore “raise”.[]There are serious questions about the government’s ability to pursue the interests it invokes, and not favoring one speaker or viewpoint. As to the No-Fly Provisions, the exemption of drone photography for “commercial purposes” appears divorced from any asserted interest in safety or privacy….

Also, the Court ruled that surveillance and commercial purposes were not constitutionally vague.

Chapter 423 doesn’t define surveillance, nor does it provide one by the Defendants. Surveillance may be described as “close observation, listening or monitoring of an individual or place with the aim of gathering evidence.” It could also refer to the act of watching or being watched. Journalism might be included in either.”).

Further, the defendants state that surveillance could refer to “the careful monitoring of a place or person, particularly by the police or army because of a crime that’s happened or is expected”. They also mention that a watch was kept on a person, group or person, including a suspect or prisoner or any other similar.[;] … continuous observation of a place, person, group, or ongoing activity in order to gather information”; or “the process of carefully watching a person or place that may be involved in a criminal activity.” These definitions do not include or exclude journalism and are found nowhere in the statute.

Defendants themselves double down on their refusal to define the term and its applicability to journalism, stating that “‘journalism’ … may or may not constitute ‘surveillance,’ … depend[ing]Jury factual decisions. Plaintiffs argue that surveillance is distinct from observation because it involves prolonged periods of time and/or some degree surreptitiousness, or invasion of one’s expectation that they aren’t being watched. But this contention only highlights the vagueness in the word’s meaning, for it in no way clarifies whether journalism is covered….

The statute [also]Dictionary definitions don’t provide definitive guidance on whether or not photojournalism falls under the umbrella of “commercial.” [Details omitted. -EV]