Texas drone law overturned after judge rules for NPPA in federal lawsuit
By Alicia Calzada
March 29, 2022 - A federal judge overturned the state of Texas’ stringent drone restrictions today, holding that it was an unconstitutional violation of the First Amendment. In his ruling, District Judge Robert Pitman enjoined the Texas Department of Public Safety and the Texas Highway Patrol from enforcing Chapter 423 of the Texas Government Code. The National Press Photographers Association brought the lawsuit in 2019 challenging the law after members experienced problems using drones for newsgathering in the state. When the law was first proposed in 2013, NPPA urged the legislature to reject the bill which amounted to a broad ban on drone use for a wide range of purposes that included journalism.
Among other incidents, NPPA member Brandon Wade, a Dallas area freelancer, was denied permission to fly his drone to document a publicly funded construction project based on the law, and NPPA member Billy Calzada, a staff photographer at the San Antonio Express-News, was threatened with arrest after photographing the aftermath of a fatal fire with his drone. Both incidents were cited as examples of the impact that the law had on journalists. NPPA was joined in the lawsuit by the Texas Press Association and freelance reporter Joe Pappalardo.
In his opinion, Judge Pitman held that the process of creating photographs and video via a drone “finds just as much protection in the First Amendment as the images themselves do.” In doing so, he noted that “[a]pplying the Constitution’s protections to new technological contexts is far from a novel exercise.” Accordingly, the judge found that “as a matter of law, use of drones to document the news by journalists is protected expression and… implicates the First Amendment.” As content-based restrictions—meaning that the content of the image determines its permissibility—the various provisions in the statute were held to be presumptively unconstitutional, and were analyzed under a process called strict scrutiny. Applying this standard, the court determined that that the law was not actually necessary, and not narrowly tailored to achieve the purported interests asserted by the state. The court also held that the statute’s use of the terms “surveillance” and “commercial purposes”—neither of which are defined in the statute—renders the law void for vagueness.
“NPPA is very pleased with the result in this case and we hope that it sends a clear message to other states and municipalities to stop enacting unconstitutionally restrictive drone laws,” said NPPA general counsel, Mickey H. Osterreicher. David Schulz, Co-Director of the Yale Media Freedom & Information Access (MFIA) Clinic, which also represented NPPA in the case, said “Judge Pittman’s opinion is an important reaffirmation that the First Amendment demands protection for the important work of journalists that is so essential to the health of our democracy.”
“Judge Pitman entered an opinion that carefully considers every issue, exhaustively reviews precedent, and holds decisively that drone photography is fully protected by the First Amendment as an integral tool in 21st-Century journalism,” said Jim Hemphill, local counsel on the case. “The challenged Texas statutes prohibited legitimate newsgathering that causes no harm, and unconstitutionally drew distinctions that disallowed journalistic drone photography but allowed the exact same drone photography when done for other favored purposes. Judge Pitman properly found that these distinctions were improper, and that the statutes were so vague as to be unconstitutional.”
The NPPA is represented in NPPA v. McCraw, Case no. 1:19-cv-00946-RP, (Tex. W.D.) by Jim Hemphill of Graves, Dougherty, Hearon & Moody, P.C., Leah Nicholls of Public Justice, the Media Freedom & Information Clinic at Yale Law School, and NPPA attorneys Mickey H. Osterreicher and Alicia Calzada.
The challenge to the law was also supported by an amicus briefs submitted by the Texas Broadcasters Association and the Reporters Committee for Freedom of the Press. Earlier in the case, the Association for Uncrewed Vehicle Systems International (AUVSI) and the Consumer Technology Association (CTA) also filed an amicus brief in support of NPPA’s position.
NPPA would like to acknowledge the work of the following law students and former law students from the MFIA clinic: Sam Aber, Timur Akman-Duffy, Liza Anderson, John Brinkerhoff, Joe Burson, Elinor Case-Pethica, Rachel Cheong, Allison Douglas, Isabel Fahri, Meenu Krishan, Roman Leal, Taylor Morris, Wendy Serra, David Stanton, Tim Tai, Emily Wang
Alicia Calzada can be reached at [email protected].
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