A federal appellate court held that a law limiting the use of cameras on drones does not violate the U.S. Constitution. In National Press Photographers Association v. McCraw, a group of journalists sued to enjoin enforcement of Texas Government Code section 423, arguing that it violates the First Amendment because it limits their ability to report the news. They also argued the law violates the Due Process Clause of the Fourteenth Amendment because it is unconstitutionally vague. The U.S. Court of Appeals for the Fifth Circuit upheld the law. Leaders of the ABA Litigation Section hold different views on the decision.
Texas adopted section 423 in 2013. It has two relevant provisions. The “surveillance provision” prohibits people from flying drones above eight feet in the air to photograph individuals or private property without consent. It contains numerous exceptions, such as permitting the military, law enforcement, or academics to use drones to take pictures. But it does not contain an exception for the press.
The “no-fly provision” prohibits people from flying drones above certain “critical infrastructure facilities.” These include airports, power plants, prisons, and sports venues. And while it also contains exceptions, including one for “commercial purposes,” it also does not contain an exception for the press.
Six years after section 423 became law, the plaintiffs challenged it in the U.S. District Court for the Western District of Texas. After considering the First and Fourteenth Amendment arguments, the trial court granted summary judgment for the plaintiffs.
The district court first considered whether section 423 implicates rights protected by the First Amendment. The court noted that there was no dispute that drones played an important role in newsgathering, and therefore restrictions on it had constitutional implications. Texas argued it did not, since drone photography “was not contemplated by the Framers when they drafted the protections for expression and the press.” This argument did not persuade the court, since the First Amendment applies to photography, which was also unknown at the time of the Bill of Rights’ adoption.
It next decided that strict scrutiny applied to the law for three reasons. First, it considered the restrictions to be content based since a judge would need to review drone images to see whether they depicted public or private property. Second, the law treated images differently based on their purpose, protecting educational images but prohibiting others. And, third, the law treated different speakers differently, allowing students to gather images that journalists could not.
The trial court then held the law failed strict scrutiny because Texas failed to establish that no alternative means exist to “protect private property, individual privacy, and the safety of critical infrastructure facilities.” The court noted that Texas already had numerous other laws that achieved these goals, such as its criminal trespass statute and its voyeurism statute. It also held that the law was not narrowly tailored, citing situations where the law was both overinclusive and underinclusive.
Because the court struck down the law as a violation of free speech, it did not need to decide whether it was also unconstitutionally vague. Still, the court explained that the law did not define the term “surveillance,” which made the law too vague to satisfy the Due Process Clause. Similarly, since the law did not define “commercial purpose,” the court noted that it was unclear when that exception applied.
Unlike the district court, the Fifth Circuit decided the plaintiffs’ Fourteenth Amendment argument was insufficient to challenge section 423 because it was premature. Because none of the plaintiffs had been prosecuted under the law, the court held there was no “imminent” controversy for it to decide.
The court considered the First Amendment issue on the merits, however, despite the fact that there was no active prosecution. It did so because, it noted, standing requirements are relaxed for First Amendment challenges to address the possibility that a challenged statute might chill protected speech. And in this case, the court noted that the plaintiffs had actually chosen not to use drones to report the news for fear of prosecution.
The court decided that the First Amendment does not constrain the no-fly provision because “only conduct that is ‘inherently expressive’ is entitled to First Amendment protection.” The court held that the use of a drone is not “inherently expressive,” and so the provisions are permissible “flight restrictions” and not impermissible “speech restrictions.” It acknowledged the argument that restrictions on drones limit the information journalists can gather, but it cited the 1965 U.S. Supreme Court decision in Zemel v. Rusk, which noted that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information.”
As for the surveillance provision, the court did not apply strict scrutiny, as the trial court did, but instead applied intermediate scrutiny. It did so because, among other reasons, the law posed “a less substantial risk” of viewpoint discrimination. It disagreed with the argument that persuaded the trial court—that the law discriminates based what an image depicts—on the grounds that the law prohibits no images, so long as they were not taken by high-flying drones. The Fifth Circuit also noted that after the district court had issued its decision, the U.S. Supreme Court decided City of Austin v. Reagan National Advertising of Austin, which rejected the position that a law discriminates based on content if one must review an image to determine its compliance.
Litigation Section leaders hold differing views on whether section 423 violates freedom of the press. “I see a strong First Amendment argument in the creation of the images in addition to the publication of the images themselves,” says Junaid Odubeko, Nashville, TN, cochair of the Section’s Privacy & Data Security Committee. “It would not surprise me if this didn’t get overturned in the Supreme Court or in an ‘as applied’ challenge,” he adds.
For other Section leaders, restricting access does not give rise to a content-based restriction. “The statute, particularly the no-fly provision, really is not facially discriminatory, nor does it govern the content of speech,” observes Rebecca Sha, New Orleans, LA, cochair of the Section’s Diversity, Equity & Inclusion Committee. “Instead, it impacts, in an ancillary fashion, access to information,” she notes.
Section leaders are sympathetic, however, to the due process challenge to section 423. “It is cold comfort to ask journalists to face criminal prosecution over an activity for which they have an economic interest and only then challenge a rule,” states Jeffrey E. Gross, New York, NY, Vice-Chair of the Section’s Trial Evidence & Practice Committee. He believes, however, that an organization of journalists “could agree in advance to pay legal defense costs for any members who face potential enforcement, so as to take the court up on bringing a future challenge that could be received more sympathetically.”
Section leaders generally agree, however, that the law may change as drone use becomes more widespread. “As technology further advances, the eight-feet rule may become obsolete and individuals or companies engage in more measures to maintain privacy,” predicts Sha.
