The Volokh Conspiracy
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In yesterday's National Press Photographers Ass'n v. McCraw (W.D. Tex.), Judge Robert Pitman held that Texas statutes limiting drone photography were unconstitutional. A brief summary of the statutes:
Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use "an unmanned aircraft to capture an image of an individual or privately owned real property … with the intent to conduct surveillance on the individual or property captured in the image." Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. Exemptions include "professional or scholarly research and development or … on behalf of an institution of higher education." …
Texas Government Code Sections 423.0045 and 423.0046 (together "No-Fly Provisions") impose criminal penalties by making it unlawful to fly UAVs over a "Correctional Facility, Detention Facility, or Critical Infrastructure Facility" or "Sports Venue" at less than 400 feet. Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. The 2017 amendments also defined a "sports venue" to include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is "primarily used" for one or more professional or amateur sport or athletics events. Plaintiffs contend that when combined with Federal Aviation Administration ("FAA") regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. The No-Fly Provisions exempt certain UAV users, including those with a "commercial purpose."
The court concluded that drone photography was covered by the First Amendment:
In the analogous context of filmmaking, the Fifth Circuit has noted that "the First Amendment protects the act of making film, as 'there is no fixed First Amendment line between the act of creating speech and the speech itself.'" Furthermore, courts have never recognized a "distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.
Here, Plaintiffs have established that Chapter 423 restricts their use of drones to record the news, necessarily constraining their ability to disseminate the news. It is uncontested that budgetary and other constraints may make drones the only option for recording certain events. Defendants assert that other options—namely expensive helicopters—can fill the same role in facilitating news production. Yet they cannot dispute the extreme price and safety differences between these technologies. Furthermore, Pappalardo and the organizational plaintiffs' members have stated that drones are central to their journalistic pursuits, claims which Defendants do not refute.
The court concluded that the restrictions were content-based and thus subject to strict scrutiny:
The Surveillance and No-Fly Provisions are both content-based restrictions that regulate based on the subject of the expression. The Surveillance Provisions require the enforcing official to inquire into the contents of the image to determine whether it is prohibited. Specifically, the provisions apply to images of individuals and private real property only. Drone photography is permitted when the subject is public property, but when the subject is an individual or private property, the possession, disclosure, display, or distribution of the image is prohibited. In effect, the statute "identifies various categories" of images based on their content, "then subjects each category to different restrictions." An official must first ascertain the subject matter of the drone image to determine whether it is permissible under the statute. Therefore, it is the content of the image that determines its permissibility—the definition of a content-based restriction.
The No-Fly Provisions are also subject to strict scrutiny by conditioning the legality of images based on their purpose. "Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny." Under the No-Fly Provisions, expression that would otherwise be prohibited is permissible if "used for a commercial purpose." Indeed, Calzada and Wade both note that, as journalists, they cannot take drone images of Nelson Wolff Stadium and Globe Life Park, respectively. But Wade was hired by the Rangers to take the very same images of Globe Life Park "for their own public relations purposes"—that he was "not permitted to share … with members of the news media." Here too, then, the purpose determines the legality of the speech. For both the Surveillance and No-Fly Provisions, the subject or purpose of the drone-captured image is the key to its applicability. Thus, both constitute content-based restrictions and trigger strict scrutiny under the First Amendment.
The Surveillance Provisions are separately subject to strict scrutiny as they discriminate based on the identity of the speaker. A regulation may also constitute a content-based restriction if it discriminates between speakers in a way that "disfavors" certain speakers in exercising their First Amendment rights. The Supreme Court has admonished that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content." Section 423.003 provides an extensive list of individuals whose use of drones is not proscribed. Professors, students, employees of insurance companies, and real estate brokers all appear on this list; journalists do not. As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist….
And the court concluded that the law failed strict scrutiny:
Here, Defendants cannot carry their burden to establish that Chapter 423 is "actually necessary" to protect any identified interests. In enacting the law, state legislators claimed the law would protect private property, individual privacy, and the safety of critical infrastructure facilities.
However, Defendants have failed to establish that alternative means are insufficient to sufficiently protect these interests. Plaintiffs note that "Defendants have a variety of tools to protect the privacy and private property of Texans from overly intrusive or dangerous drone use without Chapter 423." The Texas criminal trespass statute, recording and voyeurism statutes, and tort claims including intrusion upon seclusion all have been or could be used to protect the privacy of individuals from UAV recordings. As to safety of critical facilities, it is already a felony under Texas law to knowingly damage, impair, or interrupt a critical infrastructure facilities. Having failed to identify any interest that is unprotected absent Chapter 423, Defendants cannot establish that this provision is "actually necessary." Indeed, "[m]ere speculation of harm does not constitute a compelling state interest." …
The Surveillance and No-Fly Provisions are [also] overinclusive and thus overbroad because they "unnecessarily circumscribe[s] protected expression." Plaintiffs have established that Chapter 423 effectively outlaws the use of UAVs for newsgathering on private property—constituting 95 percent of the state. As Plaintiffs note, the Surveillance Provisions "prevent journalists from using drones to record many scenes that could be recorded from a helicopter, or that anyone standing on public property could easily see and record." Wade explains that "even if I am physically over public property, I am violating the law by documenting private real property or a person on that property." Similarly, the No- Fly Provisions proscribe use of drones even when they "indisputably do not pose the risks that the State claims." In particular, restrictions on recording empty stadiums seem to belie explanation, and Defendants have done nothing to alter this impression….
The Surveillance and No-Fly Provisions are also underinclusive based on their carve-outs for uses of UAVs that pose the same risks as would drone journalism. If the interests in privacy and safety were indeed sufficient to uphold the law, the exceptions included in Chapter 423 would "leav[e] appreciable damage to [the government's] interest unprohibited." The Surveillance Provisions exclude 21 uses of drones, none of which obviate the purported privacy concerns of newsgathering. As such, the exceptions "raise serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." As to the No-Fly Provisions, the exemption of drone photography for "commercial purposes" appears divorced from any asserted interest in safety or privacy….
The Court also held that the terms "surveillance" and "commercial purposes" were unconstitutionally vague:
Chapter 423 does not provide a definition of "surveillance," nor do Defendants put forth a single definition. ("Surveillance can involve 'close observation or listening of a person or place in the hope of gathering evidence.' Or it might be as broad as the 'act of observing or the condition of being observed.' Either might include journalism.").
Defendants further provide that surveillance may mean "the careful watching of a person or place, especially by the police or army, because of a crime that has happened or is expected"; "a watch kept over a person, group, etc., especially over a suspect, prisoner, or the like[;] … continuous observation of a place, person, group, or ongoing activity in order to gather information"; or "the process of carefully watching a person or place that may be involved in a criminal activity." None of these definitions conclusively includes or excludes journalism, and none is found within the statute.
Defendants themselves double down on their refusal to define the term and its applicability to journalism, stating that "'journalism' … may or may not constitute 'surveillance,' … depend[ing] on factual determinations by a jury." Defendants claim that "surveillance" is distinct from "observation," because it "involves prolonged time periods and/or some degree of surreptitiousness or invasion of one's expectation that they are not being watched. But this contention only highlights the vagueness in the word's meaning, for it in no way clarifies whether journalism is covered….
The statute [also] does not define the term "commercial," and dictionary definitions do not provide conclusive guidance as to whether photojournalism is included in the definition. [Details omitted. -EV]