By Paul C. Watler & Huey Rey Fischer

In considering whether a Texas law banning the use of drones for surveillance purposes violates the First Amendment, a federal judge sitting in Austin held the law infringes on the right of journalists to document and disseminate the news.

Background

The Texas statute, enacted in 2015, imposes both civil and criminal penalties for the use of drones “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.”

As a result of the law, many Texas journalists, unsure of the implications of its vague wording, refrained from relying on drones to gather images and videos for their reporting. For example, a San Antonio Express News reporter was dissuaded from relying on his drone after a local police department warned him of potential criminal penalties. In another example cited by the Court, an independent journalist’s drone images were rejected by one newspaper while another publication prohibited his drone usage for an assignment.

The Lawsuit

The National Press Photographers Association, Texas Press Association, and journalist Joseph Pappalardo brought suit in 2019 challenging the law’s constitutionality, asserting their right to operate drones and publish the resulting images as protected newsgathering activities.

The plaintiffs argued the statute unlawfully regulates content, is too vague to be enforceable, and has a chilling effect on journalism. The State of Texas argued the right to gather and disseminate news, especially with drones, was “found nowhere in the First Amendment” and that the Constitution’s Framers had never contemplated drone technology. The State further argued that the statute was essential to protecting private property, individual privacy, and safety.

Both sides filed cross-motions for summary judgment, arguing that there were enough facts before the Court to render a decision on the law in favor of one side or the other. In September 2021, the Texas Association of Broadcasters and Reporters Committee for Freedom of the Press—represented by Jackson Walker LLP—filed an amicus brief with the Court that explained and articulated their support for the journalist plaintiffs. The TAB brief highlighted the tangible public benefit of drones as valuable newsgathering tools and how this public benefit underscored the need for First Amendment protections of these activities.

The Court’s Decision

In National Press Photographers Ass’n v. McCraw, signed March 28, 2022, U.S. District Judge Robert Pittman ruled in favor of the journalists, finding that newsgathering and the act of creating images and film are protected acts under the First Amendment. He specifically found that the “the use of drones to document the news by journalists is protected expression, and, by regulating this activity, [the law] implicate[d] the First Amendment.”

The Court then applied a “strict scrutiny” review of the law because it regulated speech based on its content, by prohibiting images of individuals and private property and prohibiting certain purposes for which the images were taken. The Court noted the law required “enforcing official[s] to inquire into the contents of [an] image to determine whether it is prohibited.” Strict scrutiny of the law was further required because the statute carved out exceptions for some drone operators such as professors, but did not extend this same exception to other drone operators such as journalists.

Strict scrutiny review requires that the law must be actually necessary and narrowly tailored to achieve a compelling government interest. The Court explained that a “law restricting speech based on content is not actually necessary unless the government establishes that no alternative means would ‘suffice to achieve its interests.”

Not only did the Court find that the law was neither actually necessary nor narrowly tailored by being too broad, it was also unconvinced that the law served to protect private property, individual privacy, or safety. The Court declared the law to be “overinclusive and thus overbroad.” It noted there was no compelling reason for prohibiting drones from capturing images that could be taken from a helicopter or observed from a public street. It further observed that private property constituted 95% of the state, rendering the law too far-reaching.

After finding the law violated the First Amendment, the Court reviewed the law on another ground: whether it was too vaguely written to be enforceable. Specifically, the journalist plaintiffs argued the law’s prohibition on drone usage for “surveillance” and “commercial purposes” was unclear as applied to their line of work. Some journalists were chilled from using any drone photography out of fears that the term “surveillance” could be construed to cover their newsgathering activities. Other journalists were unsure whether the restraint on “commercial purposes” necessarily limited their activities because of the moneymaking element in journalism. The Court agreed that the meaning of these two terms left journalists with an unclear understanding of whether their documentation of news-breaking stories with drones would subject them to civil or criminal penalties.

The Upshot for Journalists

Journalists hold a constitutionally protected right to document and disseminate the news. Accordingly, as a result of Judge Pittman’s ruling, it is lawful to use drones for newsgathering activities and to publish their images. Further, news organizations may use drone photography and images without looming concerns of liability. The State of Texas has 30 days after entry of judgment to appeal Judge Pittman’s ruling to the New Orleans-based Fifth Circuit Court of Appeals.

Journalists should also take note that the right to fly drones is not absolute. Although the Court found that this particular Texas law too broad in scope, drone usage continues to be subject to narrower statutes and regulations concerning safety and national security that carry stiff civil and criminal penalties.

If your news team faces uncertainties concerning a regulation or enforcement threats by a government agency, seek competent legal counsel to determine the First Amendment implications. Jackson Walker’s media group stands ready to assist your organization as one of the most prominent in the country, providing a full range of comprehensive litigation services for our clients.

Meet Our Team

Paul C. Watler, a litigation partner at Jackson Walker LLP, is a board-certified civil trial lawyer widely recognized for “Bet-the-Company” cases, commercial litigation, First Amendment and media law. Paul served as counsel for TAB and the coalition of media amici in the drone case. Jackson Walker LLP has served as general counsel of TAB for many years.

Huey Rey Fischer, a litigation associate at Jackson Walker LLP, formerly served as a judicial law clerk for the Honorable Susie Morgan of the U.S. District Court for the Eastern District of Louisiana.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.