Appeals court decision re-instates controversial Texas drone law
By DRONELIFE Feature Editor Jim Magill
In a blow to the rights of Texas journalists to use drones in their reporting, a federal appeals court panel has reversed a lower court ruling that had found the state’s restrictive drone law unconstitutional.
A three-judge panel of the 5th Circuit Court of Appeals on Oct. 23 overturned a 2022 ruling that had found Chapter 423 of the Texas Government Code violated the First Amendment rights of photojournalists. The appeals court ruling reinstates the controversial law, but leaves the door open for journalists to challenge the application of the law on a narrow case-by-case basis.
In a 38-page ruling, the appeals court panel, led by Circuit Judge Don Willett, found that U.S. District Judge Robert Pitman had erred in March 2022 when he agreed that the plaintiffs in the case had “a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent.”
However, Alicia Calzada, attorney for the National Press Photographers Association (NPPA), which is representing the plaintiffs in the case, disputed the appeals court’s assertion.
“Contrary to the characterization of the court, we have never claimed a sweeping First Amendment right to use unmanned aerial drones in a manner that constitutes an invasion of privacy,” she said in a statement. “Invasion of privacy was a violation of the law before this statute was passed, and continues to be so, and we have never claimed otherwise.”
Plaintiffs in the case include Joseph Pappalardo, a freelance photojournalist, and two journalism associations, NPPA and the Texas Press Association, which represents approximately 400 member newspapers. Also named individually in the case were NPPA members, Brandon Wade and Guillermo (Billy) Calzada, husband of Alicia Calzada.
The three individual plaintiffs, all FAA-certified drone pilots, had all claimed that Chapter 423 had interfered with their job by restricting the use of drones in reporting the news. Pappalardo had claimed that he was “concerned that using a [drone] for journalistic purposes would put [him] at risk of criminal penalties and subject [him] to liability in a civil lawsuit” according to the appeals court ruling.
Billy Calzada, a photojournalist with the San Antonio Express-News, testified that after he flew his drone near the site of an apartment fire in San Marcos, Texas, he was told by a San Marcos police officer that he had violated state law by taking pictures with his drone and that, if he published them he would be violating the law again.
Wade, another freelance journalist, testified that in 2018 he was given an assignment by the Fort Worth Star Telegramto use his drone to document the construction of a new ballpark for the Texas Rangers. Citing Chapter 423, which prohibits the use of drones to photograph private property, the Rangers refused to give him permission to complete the assignment.
The team, however, hired Wade to use his drone to film the construction for the Rangers’ public relations purposes. This meant that the team owned the copyright to the footage, preventing Wade from using it and further profiting from it for his own purposes. Wade testified that he “lost thousands of dollars” as a direct result of this application Chapter 423.
Named as defendants in the case were Steven McCraw, director of the Texas Department of Public Safety; Dwight Mathis, chief of the Texas Highway Patrol; and Kelly Higgins, district attorney of Hays County, Texas.
In its ruling, the appeals court panel remanded the case to the lower court with instructions to enter judgment on the plaintiffs’ constitutional claims in the defendants’ favor. It also upheld the lower court’s rejection of the plaintiffs’ claim that FAA regulations would pre-empt the state’s jurisdiction over drone flights.
“Quite the contrary, federal law expressly contemplates concurrent non-federal regulation of drones, especially where privacy and critical infrastructure are concerned,” the ruling states.
The appeals court decision rebuffed the plaintiffs’ challenge to two main provisions of the drone law: The Surveillance provision and the so-called “No-Fly” provision. The Surveillance provision holds that a person commits an offense if they use a drone “to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance.”
The No-Fly provisions make it illegal to fly a drone above sensitive sites including critical infrastructure facilities, prisons and large sports venues.
The plaintiffs had argued, and the lower court agreed, that because the law made exceptions, allowing drone surveillance for certain purposes — such as survey work or academic research — but not for newsgathering, Chapter 423 was in effect suppressing the free speech rights of journalists.
However, the appeals court panel found that argument unconvincing. “While the Surveillance provisions no doubt have an incidental effect on speech, they more closely resemble conduct regulations (aerial surveillance), not regulations of expression,” the decision states.
Similarly, the panel rejected the plaintiffs’ arguments that the laws No-Fly provisions constituted violations of the plaintiffs’ free speech rights. “Because the No-Fly provisions have nothing to do with speech or even expressive activity, they do not implicate the First Amendment.”
Although the panel acknowledged the plaintiffs’ contention that drones “have become quintessential tools for documenting newsworthy events,” that did not give the journalist plaintiffs any right to not comply with the restrictions spelled out in the law.
“The Supreme Court has stated, in no uncertain terms, that ‘the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.’”
Attorneys for the plaintiffs are discussing whether they will appeal the 5th Circuit decision. In her statement, Alicia Calzada said that as a result of the ruling, “journalists in Texas will need to re-evaluate their use of drones, including evaluating their risk tolerance.”
She noted that although the appeals court ruling upheld the statute as a whole, it also gave photojournalists charged with violating Chapter 423 the possible defense opportunity to mount an “as-applied” challenge, by arguing that a particular application of the statute violated the First Amendment.
In a statement, the NPPA took issue with the appellate court decision, saying it equated any violation of Chapter 423 as a violation of privacy rights. In a warning to its members, the association stressed its commitment to ethical photojournalism standards. “Going forward, if you decide to continue using drones for journalism in Texas, it’s particularly important that you continue to avoid any activity that could be construed as an invasion of privacy.”
Jim Magill is a Houston-based writer with almost a quarter-century of experience covering technical and economic developments in the oil and gas industry. After retiring in December 2019 as a senior editor with S&P Global Platts, Jim began writing about emerging technologies, such as artificial intelligence, robots and drones, and the ways in which they’re contributing to our society. In addition to DroneLife, Jim is a contributor to Forbes.com and his work has appeared in the Houston Chronicle, U.S. News & World Report, and Unmanned Systems, a publication of the Association for Unmanned Vehicle Systems International.
Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has penned over 3,000 articles focused on the commercial drone space and is an international speaker and recognized figure in the industry. Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.For drone industry consulting or writing, Email Miriam.
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