Court Says Texas Drone Law Violates The First Amendment

Free Speech

from the if-you-can't-do-laws-right,-maybe-just-don't-do-them-at-all dept

The Texas government has passed a law that places a lot of restrictions on those operating drones. The law (passed in 2013 and amended in 2015) also creates a cause of action for residents who feel their privacy has been violated by UAV operators. There’s a single carve out: one for researchers operating drones “on behalf of an institution of higher education.”

This leaves journalists and news-gathering agencies out in the cold. The law forbids use of drones to “capture an image of an individual or privately owned property” for the “intent to conduct surveillance.” The Texas Press Association, National Press Photographers Association, and independent journalist Joe Pappalardo (who is an FAA-certified drone operator) sued in 2019, challenging the law’s apparent damage to First Amendment protections.

Oddly, the law allows commercial entities to fly over areas journalists and their drones are forbidden to access, including critical infrastructure, arenas, stadiums, and other “sports venues.” As the plaintiffs point out, this exception that excludes journalists indicates the Texas government is engaged in viewpoint discrimination, where commercial entities are allowed to do things journalists can’t, even though both entities are using the same equipment.

The journalists have won, as Volokh Conspiracy reports. The state law is unconstitutional precisely for the reasons stated in the plaintiffs’ complaint: content and viewpoint discrimination. From the decision [PDF]:

The No-Fly Provisions are also subject to strict scrutiny by conditioning the legality of images based on their purpose. “Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny.” Under the No-Fly Provisions, expression that would otherwise be prohibited is permissible if “used for a commercial purpose.” Indeed, Calzada and Wade both note that, as journalists, they cannot take drone images of Nelson Wolff Stadium and Globe Life Park, respectively. 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.” Here too, then, the purpose determines the legality of the speech. For both the Surveillance and No-Fly Provisions, the subject or purpose of the drone-captured image is the key to its applicability. Thus, both constitute content-based restrictions and trigger strict scrutiny under the First Amendment.

The Surveillance Provisions are separately subject to strict scrutiny as they discriminate based on the identity of the speaker. A regulation may also constitute a content-based restriction if it discriminates between speakers in a way that “disfavors” certain speakers in exercising their First Amendment rights. The Supreme Court has admonished that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content.” Section 423.003 provides an extensive list of individuals whose use of drones is not proscribed. Professors, students, employees of insurance companies, and real estate brokers all appear on this list; journalists do not. As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist….

The state raised a variety of nonsensical defenses, each of which is dismantled by the federal court.

Defendants claim that drone photography cannot be entitled to First Amendment protections because it was not contemplated by the Framers when they drafted the protections for expression and the press. (Defs.’ Mot. Summ. J., Dkt. 65, at 16). But neither did the Framers anticipate photography in any form, much less video or internet communications, all of which are today covered by the First Amendment. Applying the Constitution’s protections to new technological contexts is far from a novel exercise.

And:

Here, Plaintiffs have established that Chapter 423 restricts their use of drones to record the news, necessarily constraining their ability to disseminate the news. It is uncontested that budgetary and other constraints may make drones the only option for recording certain events. Defendants assert that other options—namely expensive helicopters—can fill the same role in facilitating news production. Yet they cannot dispute the extreme price and safety differences between these technologies. Furthermore, Pappalardo and the organizational plaintiffs’ members have stated that drones are central to their journalistic pursuits, claims which Defendants do not refute. The Court thus finds that Plaintiffs have established that, as a matter of law, use of drones to document the news by journalists is protected expression, and, by regulating this activity, Chapter 423 implicates the First Amendment.

The state also argued that anyone would know the difference between news-gathering and surveillance. But, as the plaintiffs point out (and the judge as well), the government is unable to define the term narrowly, much less state what it considers to be the bright line that separates the two.

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] on factual determinations by a jury.” Defendants claim that “surveillance” is distinct from “observation,” because it “involves prolonged time periods and/or some degree of surreptitiousness or invasion of one’s expectation that they are not being watched. But this contention only highlights the vagueness in the word’s meaning, for it in no way clarifies whether journalism is covered. Defendants further claim that the intent requirement in Chapter 423 is the operative word, and that persons who do not “intend” to surveil, or do not intend to surveil individuals or private property more specifically, are not liable under the statute. But without knowing what constitutes surveillance it is impossible to know whether one’s intention constitutes that prohibited activity. These arguments cannot save a fatally vague statutory term.

The state loses.

It is ordered that Plaintiffs’ motion for summary judgment is granted.

It is further ordered that TEX. GOV’T CODE §§ 423.002, 423.003, 423.004, 423.0045, 423.0046, and 423.006 violate the First and Fourteenth Amendments and are therefore unconstitutional.

The state is blocked from enforcing the unconstitutional law. And it may end up having to pay the plaintiffs’ legal fees before all is said and done. It will probably waste more time and money appealing this decision, since expensive litigation moves are pretty much free when you’re forcing taxpayers to cover the expenses. But for now, the law is dead and journalists can go back to news-gathering without fear of criminal or civil reprisal.

Filed Under: 1st amendment, drones, journalists, texas, viewpoint discrimination