Press Attack on Drone Photo Ban Survives Texas Challenge

Image by Free-Photos from Pixabay via Courthouse News

AUSTIN, Texas (CN) — Texas photojournalists have cleared a major hurdle in their lawsuit seeking to overturn the state’s restrictions on drone photography at prisons, sports arenas and other newsworthy locations and events.

State officials asked an Austin federal judge to dismiss the plaintiffs’ lawsuit, but their constitutional challenges survived the motion with hardly a scratch Monday.

In September 2019, the Texas Press Association, the National Press Photographers Association (NPPA) and Popular Mechanics contributing editor Joe Pappalardo sued state officials to overturn portions of Texas law that allegedly keep visual journalists from exercising their First Amendment rights.

“It basically creates what we call a chilling effect,” said Mickey Osterreicher, general counsel for the NPPA, in an interview. “Journalists and others wishing to use drones for newsgathering purposes are worried that they may be liable under the law, which is very vague as to what one can and can’t do with a drone in terms of newsgathering.”

The law’s surveillance provisions impose penalties on drone users who take images of individuals or private property “with the intent to conduct surveillance,” a phrase not defined in the statute. Distribution or publication of the images, a Class B misdemeanor, carries a $10,000 civil penalty.

“This violates the Constitution in part because it’s quite vague,” said Leah Nicholls, a senior attorney at Public Justice who is representing the plaintiffs. “It’s hard to know whether your conduct falls afoul of the statute or not.”

U.S. District Judge Robert Pitman’s ruling late Monday was not a final judgment on the legal issues at hand, but the Barack Obama appointee seemed to agree that “surveillance,” as used in the statute, is too vague.

“Plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct — taking photos and video for newsgathering purposes,” the judge wrote. “To the extent that defendants argue that ‘surveillance’ is distinguishable from photography and therefore the surveillance provisions are not prohibiting protected expressive conduct … that argument only highlights the dispute over the vagueness of the term ‘surveillance.’”

Pitman also noted that the journalists “plausibly argued that the surveillance provisions are not narrowly tailored” to protect the government’s interest in privacy and public safety.

Nicholls said the plaintiffs understand the state’s concerns about privacy issues but said that is covered by existing statutes.

“You don’t want someone using a drone to look through someone’s windows or something like that,” the attorney said in an interview. “There are already laws, unrelated to drones, that prohibit that kind of invasion of privacy; that’s not what we’re talking about here. There seems to be no sufficient reason for having this prohibition on speech.”

The groups also challenge the drone regulations’ “no-fly provisions,” which render it a crime to fly a drone within 400 feet of correctional facilities, including prisons and immigrant detention camps, as well as energy infrastructure such as oil and gas drilling sites, refineries and pipelines, utilities, dams, railyards and ports.

The Federal Aviation Administration prohibits drones from flying above 400 feet, so Texas’ regulations constitute “a near absolute ban” on using drones near these places, the plaintiffs argue. The law exempts drone users with a “commercial purpose,” however, which the journalists say does not protect them.

“When the Texas legislature was in session, newsgathering was originally one of those exceptions, which they intentionally took out,” Osterreicher said. “There are probably people who don’t want newsgathering done because they may be doing something they don’t want being reporting on. And those are very strong voices in Texas.”

In his ruling, Pitman was skeptical of the regulations’ constitutionality.

“Plaintiffs have also plausibly pled that the no-fly provisions are vague and overbroad because ‘commercial purpose’ is not defined in the exemptions from the no-fly provisions and is often construed to exclude newsgathering,” Pitman wrote.

Texas also criminalizes the operation of drones over sports venues such as arenas and stadiums. The photojournalists argue that these regulations have chilled their speech and have cost them thousands of dollars in work that newspapers and magazines would have paid for and published if not for the threat of fees and criminal charges.

San Antonio Express-News multimedia journalist Billy Calzada, an NPPA member, was operating a drone to report on a deadly arson in San Marcos, Texas, last year when police officers on the scene 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 groups’ complaint.

The lawsuit also said that publications such as the Dallas Morning News declined to publish photos from Brandon Wade, another NPPA member, when they learned the pictures were taken with the use of a drone, illustrating the statute’s chilling effect.

The state prevailed in dismissing one claim, however. The photojournalists argued that the no-fly portion of the statute violated the Constitution’s supremacy clause because only the FAA can regulate aviation safety. Here, Pitman took Texas’ side, writing that “federal law has not completely preempted the field regarding [unmanned aerial vehicles] flying over certain buildings and structures.”

The state’s counsel did not reply to an interview request by press time.

Osterreicher said drone footage is “a benefit to the community, it’s a benefit to the newspaper.”

“It’s certainly far safer to operate an unmanned aerial vehicle that’s less than 15 pounds than it is to fly a Bell JetRanger” news helicopter, he said.  

“Since we started doing this case, we’ve heard from so many journalists to whom this case is really important. Out of the blue, unsolicited,” Nicholls said. “It also has really been driven home to me whenever I see drone footage presumably taken in another state, and thought about how powerful those images are, and how well they relay the message, how well they share information with the public. I continue to be disappointed that journalists can’t do that in Texas.”

The Texas Legislature will reconvene in 2021, at which point lawmakers could amend the regulations. As of Tuesday afternoon, the only legislation filed concerning the statutes adds military installations to the list of critical infrastructure facilities that drones may not fly over.

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