A First Amendment challenge to a Texas law limiting drone photography may move forward, a federal district court in Texas recently ruled. The suit, brought by the National Press Photographers Association, the Texas Press Association and a Texas reporter, challenged a state law that declares it unlawful to use “an unmanned aircraft to capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property in the image.”
The plaintiffs challenged the law on several First Amendment grounds. The court agreed that the plaintiffs have sufficiently shown that the regulations constitute speaker-based, and thus content-based, discrimination, subjecting the regulation to strict scrutiny. The statute exempts drone operators who use the devices “on behalf of an institution of higher education.” In addition, the law exempts “commercial” drone users from no-fly bans over correctional facilities, detention facilities, critical infrastructure sites or sports venues.
Newsgathering, however, is not explicitly exempted, leaving journalists who use drones unprotected from liability. A newsgathering exemption was included in earlier drafts of the law, but it was removed before passage.
The court also agreed with the plaintiffs that they have sufficiently alleged that the law is overbroad because it does not properly define “surveillance,” restricts a substantial amount of First Amendment activity and fails to narrowly tailor certain provisions to serve government interests.
One of the plaintiffs, NPPA member Guillermo Calzada, experienced first-hand the chilling effects of the statute. In 2018, Calzada used a drone to report on a fire at an apartment complex. Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives stopped him, and a police officer informed him that he could be subject to criminal penalties under the challenged law if he continued using his drone to report or published any of the already-captured images.
The court only granted the government’s motion to dismiss with respect to the plaintiff’s preemption claims; otherwise, the ruling was a solid, if initial, success for the plaintiffs and for journalists who use drones in the course of their reporting.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.