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Litigation News

Litigation News | 2022

First Amendment Protection Extends to New Drones

Shirin Afsous


  • Court strikes down laws regulating drone use as unconstitutional.
  • The case involved a statute regulating drones, restricting journalists from using drone footage to report the news.
  • First Amendment protections extend to drone newsgathering, preventing both content- and speaker-based limitations. 
First Amendment Protection Extends to New Drones
Mark Newman via Getty Images

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A statute regulating drones went too far by restricting journalists from using drone footage to report the news. A federal court ruled that First Amendment protections extended to drone newsgathering and that the law violated the Constitution by imposing both content- and speaker-based limitations. ABA Litigation Section leaders predict the decision will shape laws regulating drones in other jurisdictions.

Texas Law Grounds Drones

In Nat’l Press Photographers Ass’n v. McCraw, a journalist and two media organizations challenged the constitutionality of Chapter 423 of the Texas Government Code, which imposed civil and criminal penalties for taking images with drones. The “surveillance provisions” banned using “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.” The “no-fly provisions” banned flying drones over prisons, critical infrastructure, and sports venues “at less than 400 feet.” Neither contained any exemptions for newsgathering or journalism.

The plaintiffs moved for summary judgment on the grounds that the provisions contained unconstitutional content- and speaker-based restrictions, were unconstitutionally vague and overbroad for failing to define “surveillance,” and overly restrictive of where drones could fly.

Court Grounds Drone Statute

The U.S. District Court for the Western District of Texas granted the plaintiffs summary judgment. In so holding, the court first considered whether the First Amendment covered drone usage. Answering yes, it explained that First Amendment protections “must extend to each phase of the ‘speech process’ if they are to have any effect at all.” The court noted that the U.S. Court of Appeals for the Fifth Circuit had recognized that filmmaking is constitutionally protected and that other federal appellate courts did not distinguish between the process of creating speech and the end product. Further observing that the First Amendment applies to photography, video, and internet communications even though the founding fathers had not contemplated those media forms, it rejected the defendants’ argument that use of drones “is found nowhere in the First Amendment.”

Next, the court analyzed the appropriate standard of review. Generally, strict scrutiny applies where the challenged law contains content- or speaker-based restrictions. A law that “‘on its face’ draws distinctions based on the message a speaker conveys” is a content-based restriction, while speaker-based restrictions are based on the identity of the speaker. The court concluded that both the surveillance and no-fly provisions required the government to determine the subject matter of the image since the laws only applied to images of individuals and private property. It additionally found that the no-fly provisions impermissibly discriminated based on the purpose of an image by permitting drone images to be used only commercial purposes, but not others. Similarly, it noted that the surveillance provisions discriminated based on speaker identity by allowing some individuals, such as professors, students, and real estate brokers to use drone footage, but not journalists.

Applying strict scrutiny, the court held that the neither the surveillance nor the no-fly provisions passed muster. A strict scrutiny analysis presumes the challenged statute is invalid unless “the government proves that [it is] narrowly tailored to serve compelling state interests,” or in other words, “actually necessary.” A law is “actually necessary” when there is “no alternative means” to achieve that interest. The court noted that the state had a variety of other mechanisms to protect the safety of property and privacy rights, such as criminal trespass statutes, recording and voyeurism statutes, and tort law. Accordingly, it found that the provisions were not actually necessary.

Additionally, the court determined that Chapter 423 was not narrowly tailored because it was both overinclusive and underinclusive. Its prohibition on drone use over private property was overinclusive because it covered 95 percent of the state, and the same footage could legally be obtained from a helicopter or by standing on nearby public property. The court also found the provisions to be underinclusive because the same privacy and safety risks existed for individuals with a “commercial purpose” exemption as for journalists.          

Lastly, the court determined that the surveillance and no-fly provisions were void for vagueness. It explained that “[a] law is unconstitutionally vague if it (1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.” Because Chapter 423 did not define the terms “surveillance” or “commercial purposes,” the court concluded it left journalists unable to ascertain whether their actions would violate the law.

A Roadmap for New Drone Laws?

Litigation Section leaders agree with the result. “To allow drones for newsgathering, there must be protections for privacy interests and safety, such as laws against stalking, trespass, and other forms of harassment,” explains Sidney W. Degan III, New Orleans, LA, cochair of the Section’s Admiralty Litigation Committee. “Privacy concerns are important, so having laws in place to protect these interests is necessary­—but without being so overly broad that no drone images can be used for newsgathering purposes,” he adds.

Other Section leaders believe the court’s decision may guide other states looking to implement their own drone regulations. “This case provides a signal to other state or government entities how they can better attend to legislation that would not run afoul of the concerns that the court had here,” notes Sherilyn Pastor, Newark, NJ, cochair of the Trial Evidence Committee. “In this case, the court was concerned that such a broad ban with such wide-ranging implications could have an impact on journalists in a way that seemed inequitable,” concludes Pastor.