By Mickey Osterreicher & Alicia Wagner Calzada | NPPA General Counsel
The NPPA, joined by the Texas Press Association and an independent journalist, recently filed a lawsuit in federal court challenging a Texas law that makes it a crime for visual journalists and others to use drones for newsgathering and other similar activities.
Texas’s drone law is among the most restrictive in the country, making it a crime and imposing civil penalties on journalists’ use of drones to capture images of people or privately owned real property, regardless of where the drone is flying. The statute uses a vague and undefined phrase, “intent to conduct surveillance,” as being prohibited. The word “surveillance” has been interpreted to include most newsgathering activities – and is broadly defined in the dictionary to include “[c]lose observation or listening of a person or place in the hope of gathering evidence.”
A subsection of the code provides more than 21 exemptions – including for oil and gas industries, agribusiness and real estate brokers – from the criminal and civil liability otherwise imposed, but notably does not exempt the use of drones to capture images for the purpose of visual journalism or newsgathering. The penalties for violating the law range from fines of $500 to $2,000 and/or 180 days in jail for taking a single image. Each image constitutes a separate offense, both when captured and again when used or distributed.
The lawsuit also challenges a provision of Texas’ drone law that completely bans all drone use at an altitude lower than 400 feet (above ground level) for any purpose above critical infrastructure facilities, correctional facilities and sports venues. “Critical infrastructure facilities” are defined as 19 different kinds of facilities, including oil and gas drilling sites and pipelines; correctional facilities; animal feedlots; and petroleum and alumina refineries. The 400-foot floor acts as a per se ban of drone operations because under Federal Aviation Administration regulations, drones are not permitted to fly higher than 400 feet above ground level.
The suit alleges that the law violates the First Amendment because it is a restriction on speech that is not narrowly tailored in furtherance of a substantial governmental interest. The suit also argues that the law violates the Supremacy Clause because it infringes upon the FAA’s exclusive control over national airspace.
The real purpose of the law, the suit argues, is to suppress news coverage of potentially dangerous or embarrassing conditions at these sites of public interest. This includes, for example, the negative environmental impacts of some oil, gas and chemical manufacturing facilities and the conditions in animal feedlots.
Jim Hemphill, a local Texas attorney with the Austin law firm Graves Dougherty Hearon & Moody P.C., representing NPPA and the other plaintiffs pro bono, said, “Newsgathering is an essential component of journalism and is entitled to First Amendment protection. Not only do these laws unconstitutionally criminalize newsgathering, but they also restrict journalists while granting others – for example, certain commercial interests – far greater latitude in flying drones and using them for photography. Placing constitutionally protected activity in such an inferior position is especially troubling and is yet another reason the statutes violate the First Amendment.”
Alicia Calzada, NPPA’s deputy general counsel, testified against the bill at a 2013 legislative hearing, warning the Legislature of the chilling impact of the bill. She now correctly notes that “our members worry about the legal risk every time they put a drone in the air – and some of our members avoid using drones in this state altogether.”
Despite those warnings that the unconstitutional restrictions of the proposed law would have a chilling effect on newsgathering activities and free speech, the Legislature passed the measure in 2013. It then amended the law in 2015, 2017 and 2019, adding additional exemptions to the surveillance provisions (but not for journalists). Legislators also added two sections banning the use of drones above any location classified as “a correctional facility, detention facility, or critical infrastructure facility” or a “sports venue.”
The NPPA has been an active stakeholder in the use of drones for newsgathering for many years, working cooperatively with the FAA and other government agencies as well as first responders and news organizations to create common-sense rules. The NPPA believes it is extremely unfortunate that Texas has chosen to impose such “constitutionally suspect” restrictions on drone use despite our best efforts.
“Chapter 423 uses vague and undefined terms. This makes it difficult for journalists and other members of the public to know whether they are breaking the law when they use drones to gather the news. Vague laws that affect speech are particularly concerning because they increase the risk that prosecutors could charge speakers they disagree with while leaving alone speakers they agree with,” said Joe Burson of Yale Law School’s Media Freedom and Information Access Clinic (MFIA), one of the groups representing the plaintiffs in the lawsuit. “The federal government has exclusive authority to regulate aviation safety and, pursuant to this responsibility, the Federal Aviation Administration has set rules to protect public safety while still incorporating drones into the national airspace. We’re concerned about the Texas law’s interference with federal law,” he added.
An example of the law’s unquestionable hampering of important newsgathering activities can be seen by NPPA member Brandon Wade, who was hired by the Center for Investigative Reporting (CIR) to photograph a facility housing immigrant children where CIR reported children had been mistreated. Because of the restrictions and vagueness of Texas’ drone law, Wade had to limit where he flew his drone, which hampered his efforts to capture newsworthy images of the treatment center. NPPA member Billy Calzada was using a drone to capture images of the aftermath of a deadly fire that killed six people in San Marcos, Texas, when he was threatened by police with the enforcement of the law.
“The carve-outs in Texas’ drone statutes for big business interests like oil and gas, but not for journalists, is brazen and unconstitutional. It is, however, part of a growing national trend. Knowing that preventing great reporting is essential to continuing to profit from exploitative business models, powerful industries are backing efforts in state legislatures across the country to curb the free speech of investigators. This is especially true of industries whose operations are farther from the public eye, and that’s why the success of this lawsuit regarding drone journalism in Texas is so important,” said Leah Nicholls, senior attorney at Public Justice, another of the groups representing the plaintiffs.
Another journalist, Joseph Pappalardo, alleges in the complaint that, but for the law, he would have used his drone to take aerial photographs to aid in coverage of newsworthy topics like Hurricane Harvey (including a panic at the gasoline pumps that the storm caused); flood and wind damage in other storms; house fires; construction projects; urban sprawl; the removal of homeless encampments; the route a proposed toll road would take; dumping sites for dead animals; and the removal of a Confederate statue from a public park. Instead, he allowed his federal drone license to expire, since the law prevented him from using his drone for journalistic purposes.
We will continue to keep membership posted as the lawsuit moves through the court system. ■
Got a question or topic for a future column? If you are an NPPA member, send your question to us or find us at an NPPA event. Email Mickey Osterreicher at [email protected] or Alicia Calzada at [email protected]
