AUSTIN, Texas (CN) – Texas photojournalists are suing state officials for a ban on drone filming and photography in certain locations that they say violates the First Amendment and is chilling the speech of reporters and news outlets.
The lawsuit, filed Thursday in Austin federal court, challenges the constitutionality of a section of Texas law that penalizes reporters and photojournalists for taking photos and recording videos with unmanned aerial vehicles, or drones.
Two provisions criminalize piloting a drone less than 400 feet above myriad facilities often recorded in news photo and videography, notably sports arenas, jails and prisons, oil and gas drilling sites, and petroleum refineries. The Federal Aviation Administration requires drones to fly below 400 feet, so Texas’ regulations constitute “a near absolute ban” on using drones near these places, the plaintiffs argue.
Another section of the law imposes both civil and criminal punishments for using a drone to take or publish images of individuals and private property “with the intent to conduct surveillance,” a phrase not defined in the statute. According to the lawsuit, that makes the ban unconstitutionally vague and overbroad.
Joseph Pappalardo, contributing editor for Popular Mechanics and former editor-in-chief of the Dallas Observer, is named as a plaintiff in the suit. The complaint says he no longer takes his drone on reporting assignments because he fears reprisal under the Texas law.
Pappalardo is joined by the National Press Photographers Association and the Texas Press Association in filing suit against Texas Department of Public Safety Director Steven McCraw, Texas Highway Patrol Chief Ron Joy and Hays County District Attorney Wes Mau. The plaintiffs are represented by lead attorney James Hemphill of Graves, Dougherty, Hearon & Moody in Austin.
San Antonio Express-News multimedia journalist Guillermo “Billy” Calzada, a member of the National Press Photographers Association, was operating a drone to report on a deadly arson in San Marcos, Texas, when two police officers told him he could be held criminally liable if he continued to use his drone at the scene of the fire or if his footage was published, according to the complaint.
The lawsuit says that publications such as the Dallas Morning News have declined photography from NPPA members such as Brandon Wade when they learned the pictures were taken with the use of a drone, illustrating the statute’s chilling effect.
Capturing an image in violation of this law could mean a $5,000 civil penalty, and possessing such an image is a Class C misdemeanor. A photographer displaying or distributing those images — a Class B misdemeanor — can be sued for another $10,000.
Academics can use drones for scholarly research, as can military personnel, telecommunication providers and law enforcement officers for their own purposes. The law names 21 exemptions to its penalties – journalists and news-gathering are not among them.
Restrictions on free expression that take the speaker or the content of the speaker into account face stricter scrutiny from the courts than content-neutral restrictions.
The plaintiffs ask the court to declare that the law violates their First and 14th Amendment rights and enjoin state officers from enforcing the drone ban.