Free Speech

Drone Photography Potentially Protected by First Amendment

So a district court suggests in a challenge to a Texas statute that limits drone photography that "surveil[s]" private property—but that exempts similar surveillance by academics and certain others,

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From today's decision by Judge Robert Pitman (W.D. Tex.) in National Press Photographers Ass'n v. McCraw, in which plaintiffs brought a First Amendment challenge (among other challenges) to the Texas statute limiting drone photography (note that this doesn't deal with normal trespass law, which might cover certain drone usage that is physically over private property):

The Surveillance Provisions [Sections 423.002, 423.003, 423.004, and 423.006] declare it unlawful to "capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property contained in the image." …

Plaintiffs are challenging the use of UAVs for the purpose of newsgathering and recording, "which is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording." ACLU of Ill. v. Alvarez (7th Cir. 2012). Plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct—taking photos and video for newsgathering purposes. 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."

Content-based restrictions on First Amendment protected activity "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." A regulation of speech is content-based if it either "applies to particular speech because of the topic discussed or the idea or message expressed," or discriminates between speakers in a way that "disfavors" certain speakers from exercising their First Amendment rights.

Plaintiffs have sufficiently pled that the Surveillance Provisions apply speaker-based discrimination and are thus content-based. Plaintiffs argue that because the Surveillance Provisions exempt certain speakers from liability, other speakers such as journalists face liability because of the type of speaker they are. Certain individuals are permitted to capture UAV images under the Surveillance Provisions, such as professors,students,professionalengineers,andinsurancecompanyemployees.

Defendants argue that these exemptions are not speaker-based discrimination because the same person could be permitted to use a UAV for an academic purpose, but not for newsgathering—regardless of that person's identity. The Court disagrees that Defendants' distinction means the Surveillance Provisions are not speaker-based. The regulation is not speaker-neutral just because one person may simultaneously fall into multiple categories of speakers under the Surveillance Provisions. Instead, the Surveillance Provisions are discriminating based on the type of speaker someone is at the time they are using a UAV because of the exceptions listed in Section 423.002….

{Plaintiffs also argue that the Surveillance Provisions are content-based because they include exemptions based on the purpose of the images captured with a UAV, such as "professional or scholarly research," operations and maintenance of utility or telecommunications facilities," and "mapping." Defendants argue that because the same image can be prohibited or allowed under the Surveillance Provisions based on how it is being used, the content of the image is not the discriminating factor. Because there is also speaker-based discrimination requiring the application of strict scrutiny, the Court does not reach this issue.}

As a result, the Court should apply strict scrutiny. See Sorrell v. IMS Health Inc. (2011). Even assuming that Defendants will demonstrate a compelling government interest, Plaintiffs have plausibly argued that the Surveillance Provisions are not narrowly tailored to protect this interest in light of the numerous exceptions included in the Surveillance Provisions. Plaintiffs question why government interests in privacy and public safety are implicated for journalists using UAVs, but not for other individuals exempted under the Surveillance Provisions. The Court agrees that some of these exceptions leave open the question of whether the Surveillance Provisions are narrowly tailored. As a result, Plaintiffs' complaint has plausibly alleged that the Surveillance Provisions impermissibly impose content-based restrictions….

I'm inclined to agree that the speaker classification here is content-based, because the only explanation for the preference for certain speakers is that the government expects them to produce content that it sees as more valuable than the content produced by other speakers.

The court also concluded that the Surveillance Provisions were "impermissibly vague because they do not define the term 'surveillance'":

[A]t no point do Defendants attempt to define the term "surveillance" or point to any authority or evidence that outlines what type of UAV use is prohibited under "surveillance." They argue that Plaintiffs have not shown their actions would violate the Surveillance Provisions, but never take a stance on whether the activities at issue would be prohibited by the Surveillance Provisions.

Defendants instead argue it is a factual inquiry as to whether Plaintiffs' conduct is prohibited by the Surveillance Provisions, not a question of whether the provisions are themselves vague. However, Defendants never indicate what interpretation of the Surveillance Provisions should govern such a factual inquiry, and instead only assert that "[o]rdinary persons are perfectly capable of understanding the meaning of the word 'surveillance.'" With multiple possible broad dictionary definitions from Plaintiffs, and  no clarity offered from Defendants, the Court finds that Plaintiffs have plausibly pled that the Surveillance Provisions are unconstitutionally vague.

The court then turned to the No-Fly Provisions, which ban the use of drones "over a correctional facility, detention facility, or critical infrastructure facility" or "over a sports venue," and ban "drones from 'mak[ing] contact with' such a facility or to allow it 'to come within a distance … that is close enough to interfere with the operations of or cause a disturbance to the facility'":

Plaintiffs plead that the No-Fly Provisions violate the First Amendment as an unconstitutional restraint on expressive conduct. In the alternative, Plaintiffs also plead that the No-Fly Provisions impose an incidental restraint on protected conduct, in which case intermediate scrutiny applies. Under intermediate scrutiny, regulation is only permissible if the government has the power to enact the regulation and the regulation (1) "furthers an important or substantial government interest" that is (2) "unrelated to the suppression of free expression" and (3) narrowly tailored to advance that interest. Plaintiffs have sufficiently pled facts to plausibly allege the No-Fly Provisions are unconstitutional under intermediate scrutiny.

Even assuming the No-Fly Provisions further an important government interest and that interest is unrelated to the suppression of free expression, which the parties dispute, Plaintiffs have adequately pled the No-Fly Provisions are not narrowly tailored. While Defendants have pointed to government interests that may be sufficient to meet the first requirement of an important or substantial government interest, Plaintiffs allege that the exemptions for commercial interests in the No-Fly Provision undercut the purported importance of these government interests.

The Court agrees that Plaintiffs have plausibly raised questions as to how these government interests could be threatened by newsgathering but not by commercial activities. This inconsistent prohibition of UAVs indicates that the No-Fly Provisions are restricting more speech than necessary to achieve the government's alleged interests.

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. Plaintiffs cite multiple dictionary definitions of "commercial" that do not provide clear guidance on whether photojournalism is included. For instance, "the buying and selling of goods" seems less likely to include photojournalism. Whereas Plaintiffs assert that other dictionaries define "commercial" to mean any moneymaking enterprise, seemingly more likely to include photojournalism within the definition.

But the court rejected the plaintiffs' claims that the No-Fly Provisions were preempted by the federal scheme for regulating aviation safety.

NEXT: "Copyright Troll" Richard Liebowitz Suspended (on Interim Basis) from S.D.N.Y. Bar

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  1. So what’s the remedy? Strike down the provisions or remove the content based restriction by applying it to all speech, academic included? I’m inclined to agree with Gorsuch’s concurrence (I think, someone argued this) in Barr v. ACPCA that applying an equal protection remedy doesn’t really make any sense for first amendment cases, but the majority in that case held otherwise so …

  2. Any protection of drone photography needs to be accompanied by a law with a harsh penalty for using a drone to photograph where people have a reasonable expectation of privacy.

    And no defense that your drone was over the public road when you used it to peer into that bedroom window. If it wasn’t visible from 2 meters high from a public street or location, the people had an expectation of privacy.

    1. I like that as long as there’s an ‘incidental capture with no subsequent use or publication’ exception. Consider, for example, the insurance adjuster taking pictures of hail damage on a roof who accidentally captures a partial image of the neighbor sunbathing next door. As long as the picture taker does his/her best after the fact to respect privacy, that incidental capture ought not to trigger the penalty.

  3. They wanna station quasi-permanent drones spying on celebrity backyards in hopes of catching, in the words of Monte Python, naughty bits.

  4. Just use the Joe Biden solution, and fire your shotgun into the air.

    1. I shot an arrow into the air
      it struck a drone I know not where

  5. Are Peeping Tom statutes unconstitutional under the First Amendment? Do they become unconstitutional if the peeper takes pictures, thus creating speech?

    What exactly is the difference between a Peeping Tom observing personally and one observing by means of a drone?

    I find myself skeptical that the First Amendment applies fully to means of obtaining information, as distinct from disseminating it. I am particularly skeptical that there is a First Amendment right to use technology to snoop on other people’s privacy.

  6. OT….I would like to see a blog post on the recent NJ law passed that prohibits PII of federal judges from being published.

    I want that same deal.

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