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 make use of drones of their reporting, a federal appeals court panel has reversed a lower court ruling that had found the state’s restrictive drone law unconstitutional.
A 3-judge panel of the fifth 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 applying 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 within the case had “a sweeping First Amendment right to make use of unmanned aerial drones to film private individuals and property without their consent.”
Nevertheless, Alicia Calzada, attorney for the National Press Photographers Association (NPPA), which is representing the plaintiffs within the case, disputed the appeals court’s assertion.
“Contrary to the characterization of the court, we now have never claimed a sweeping First Amendment right to make use of unmanned aerial drones in a way that constitutes an invasion of privacy,” she said in a press release. “Invasion of privacy was a violation of the law before this statute was passed, and continues to be so, and we now have never claimed otherwise.”
Plaintiffs within the case include Joseph Pappalardo, a contract photojournalist, and two journalism associations, NPPA and the Texas Press Association, which represents roughly 400 member newspapers. Also named individually within 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 using drones in reporting the news. Pappalardo had claimed that he was “concerned that using a [drone] for journalistic purposes would put [him] vulnerable to criminal penalties and subject [him] to liability in a civil lawsuit” in accordance with the appeals court ruling.
Billy Calzada, a photojournalist with the San Antonio Express-News, testified that after he flew his drone near the positioning 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 along with his drone and that, if he published them he could be violating the law again.
Wade, one other freelance journalist, testified that in 2018 he was given an task by the Fort Value Star Telegramto use his drone to document the development of a brand new ballpark for the Texas Rangers. Citing Chapter 423, which prohibits using drones to photograph private property, the Rangers refused to present him permission to finish the task.
The team, nevertheless, hired Wade to make use of his drone to film the development for the Rangers’ public relations purposes. This meant that the team owned the copyright to the footage, stopping Wade from using it and further taking advantage of it for his own purposes. Wade testified that he “lost 1000’s of dollars” as a direct results of this application Chapter 423.
Named as defendants within 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 within 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 important infrastructure are concerned,” the ruling states.
The appeals court decision rebuffed the plaintiffs’ challenge to 2 major provisions of the drone law: The Surveillance provision and the so-called “No-Fly” provision. The Surveillance provision holds that an individual commits an offense in the event that they use a drone “to capture a picture of a person or privately owned real property on 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 huge sports venues.
The plaintiffs had argued, and the lower court agreed, that since the law made exceptions, allowing drone surveillance for certain purposes — equivalent to survey work or academic research — but not for newsgathering, Chapter 423 was in effect suppressing the free speech rights of journalists.
Nevertheless, the appeals court panel found that argument unconvincing. “While the Surveillance provisions little doubt have an incidental effect on speech, they more closely resemble conduct regulations (aerial surveillance), not regulations of expression,” the choice states.
Similarly, the panel rejected the plaintiffs’ arguments that the laws No-Fly provisions constituted violations of the plaintiffs’ free speech rights. “Since the No-Fly provisions don’t have anything to do with speech and even expressive activity, they don’t implicate the First Amendment.”
Although the panel acknowledged the plaintiffs’ contention that drones “have grow to be quintessential tools for documenting newsworthy events,” that didn’t give the journalist plaintiffs any right to not comply with the restrictions spelled out within the law.
“The Supreme Court has stated, in no uncertain terms, that ‘the First Amendment doesn’t guarantee the press a constitutional right of special access to information not available to the general public generally.’”
Attorneys for the plaintiffs are discussing whether they’ll appeal the 5th Circuit decision. In her statement, Alicia Calzada said that consequently of the ruling, “journalists in Texas might want to re-evaluate their use of drones, including evaluating their risk tolerance.”
She noted that although the appeals court ruling upheld the statute as an entire, it also gave photojournalists charged with violating Chapter 423 the possible defense opportunity to mount an “as-applied” challenge, by arguing that a specific application of the statute violated the First Amendment.
In a press release, 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 moral photojournalism standards. “Going forward, for those who determine to proceed using drones for journalism in Texas, it’s particularly necessary that you just proceed to avoid any activity that might be construed as an invasion of privacy.”
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