A Texas federal judge has stricken down the vast majority of a Texas drone law as unconstitutional.  [Read Order here.]

TAMU AgriLife photo by Kay Ledbetter

Background

The “Use of Unmanned Aircraft” statute was passed in 2013.  To read a prior blog post reviewing the statute in detail, click here.  This lawsuit breaks the challenged provisions into two categories: Surveillance Provisions and No-Fly Provisions.

The Surveillance Provisions (Texas Government Code Sections 423.002, .003, .004, and .005) impose criminal and civil penalties for anyone using a drone to capture an image of an individual or privately owned real property with the intent to “conduct surveillance” on the individual or property.  See Texas Government Code Section 423.003.  The statute exempts a number of uses from the provisions of the statute including professional or scholarly research, satellite mapping, and real estate agents, for example.  See Texas Government Code Section 423.002.  Importantly, newsgathering is not an exempted use, meaning the statutory prohibitions apply to newsgathering activities.

The No-Fly Provisions (Texas Government Code Sections 423.0045 and 423.0046) impose criminal penalties by making it unlawful to fly a drone over a correctional facility, detention facility, critical infrastructure facility, or sports venue.  Of note for the ag industry, in 2017, the statute was amended to include confined animal feeding operations to the definition of “critical infrastructure facilities.”  [Read blog post here.]  The No-Fly Provisions also contain exemptions for certain uses, including those with a “commercial purpose.”  There is no exemption for newsgathering.

Lawsuit

Two media organizations (National Press Photographers Association & Texas Press Association) and an individual journalist filed suit in Texas federal court.  The journalist is a Texas reporter who owns a drone and is certified to operate it by the FAA.  He claims the Texas Use of Unmanned Aircraft statute has chilled his newsgathering because he is concerned about liability.  He says he has forgone opportunities to use the drone in reporting on multiple stories. The National Press Photographers Association (NPP)  is a national organization representing journalists, including 300 members in Texas.  Their members regularly use drones for newsgathering, and their reporting efforts have been chilled by the statute.  The Texas Press Association (TPA) has more than 400 newspaper members across Texas.  They allege some members have avoided using drone photography due to the statute.  Members of both organizations reported having threats of prosecution when using drones or have had newspapers decline to carry drone footage because of the statute.

Plaintiffs brought suit against the Director of the Texas Department of Public Safety, Chief of the Texas Highway Patrol, and the District Attorney of Hays County.

Plaintiffs claim the statute violates the First Amendment. In particular, they argue the Surveillance Provisions are improper content-based and speaker-based restrictions and well as being overly broad and unconstitutionally vague.  Plaintiffs argue the No-Fly Provisions  are content-based discrimination and they are unconstitutionally vague and overbroad.

Both the Plaintiffs and Defendants filed motions for summary judgment.  This means both parties believe there are no genuine disputes over factual issues and, as such, they are entitled to judgment as a matter of law.  In other words, the parties do not believe the court needs to decide facts, but merely determine whether the statute is lawful or not.

Order

Judge Pitman, who serves on the US District Court for the Western District of Texas, issued an Order on March 28, 2022 striking down the majority of the statute as unconstitutional. [Read Order here.]

Standing

First, the Judge addressed the issue of standing.  The Constitution requires a plaintiff to meet certain criteria to bring a lawsuit.  In particular, a plaintiff must: (1) suffer an injury in fact; (2) that is fairly traceable to the challenged conduct; and (3) it can likely be redressed by a favorable judicial decision.  Here, the Defendants challenged standing under each element.

Plaintiffs argued the journalist meets the requirements for individual standing and the associations meet the requirements for associational standing.

Injury in Fact

Defendants claimed the individual journalist cannot show injury because he has not personally been threatened with or subject to enforcement of the statute.  However, the court explained, a plaintiff need not show they will be punished under a law, but only that it caused the plaintiff to reasonably self-censor speech.  A person is not required to be criminally prosecuted in order to challenge law.  Here, the journalist claimed he stopped using his drone for newsgathering for fear of facing liability under the statute.  Similarly, the NPPA and TPA both had members who have similarly limited drone use because of the statute.  The court found this sufficient to prove injury in fact.

Traceability

Defendants claimed two of them lack prosecution authority under the statute, and the one who has that authority has never threatened to use it.  The court explained this is irrelevant, because all three have the power and duty to enforce the statute.  This satisfied the traceability requirement.

Redressability

Redressability requires a plaintiff show that a favorable decision in a lawsuit will relieve plaintiff’s injury.  Here, a declaratory judgment would allow the Plaintiffs to exercise their First Amendment rights by removing the fear of prosecution under the statute.  This requirement was met.

Associational Standing

Finally, the court also found both the NPPA and TPA meet the requirements for organizational standing, meaning they are able to bring suit on behalf of their members.  Members could have brought the suit themselves given the chilling effect of the law, both organizations seek to vindicate interests germane to their purpose, and the lawsuit challenging the constitutionality of the statute on its face does not require individual members to participate.

Immunity

Next, the Defendants argued they are protected from suit because of sovereign immunity.  The Eleventh Amendment typically prohibits federal lawsuits against a state, state agency, or a state official in his or her individual capacity unless that immunity is waived by the state or Congress has abrogated it.  Here, the Ex Parte Young exception to sovereign immunity allowed the suit to go forward.  This rule essentially allows lawsuits against state officials if the suit is seeking prospective relieve for ongoing federal violations.  Here, there is the potential of the Defendants continuing to enforce the statute going forward, and the court found possibility of enforcement sufficient to prove the exception to sovereign immunity and allow the case to go forward.

First Amendment

Finally getting to the meat of the analysis, the court turned to the First Amendment.

Is drone photojournalism covered by the First Amendment?

Initially, the court determined drone photojournalism is a covered activity.  Defendants argued the right to use a drone to gather and disseminate news is not contained in the First Amendment.  The court disagreed.  “The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, and the right to read.”  There is no distinction between the speech and the process of creating the form of speech such as taking photographs or videos.  “The process of creating the images finds just as much protection in the First Amendment as the images themselves do.”  Further, although Defendants are correct the Framers did not contemplate drones when drafting the Constitution, “neither did the Framers anticipate photography in any form, much less video or internet communications, all of which are today covered by the First Amendment.”  Thus, the First Amendment applies.

What level of scrutiny applies?

Next, the court determined the statute’s provisions are subject to strict scrutiny under the First Amendment.  The court found both the Surveillance and No-Fly Provisions are content-based, as they differentiate based on the contents and purposes of the images. Because the statute’s provisions are content-based, this means that in order for them to be permissible, the State must show they are narrowly tailored to serve a compelling state interest.

Does the statute survive strict scrutiny?

The court then applied the strict scrutiny test to the statutory provisions.  Content-based restrictions are presumptively invalid unless the State can show they are narrowly tailored to serve a compelling state interest.  The restrictions must be “actually necessary” in order to be upheld.

First, the court looked at whether the statutory provisions are actually necessary to achieve the State’s interest in protecting private property, individual privacy, and the safety of critical infrastructure facilities.  In other words, are there any alternative means to achieve the state’s interests besides these statutory provisions?  Here, the court found there were alternative means including a variety of tools and statutes such as those applying to criminal trespass, recording and voyeurism, and tort claims.

Second, the court found the Defendants failed to prove the provisions were narrowly tailored to address the State’s interests because the statute is both over inclusive and under inclusive.  Specifically, both provisions are over inclusive because they unnecessarily prohibit protected expression.  Even if a journalist is standing on public property, he violates the law by documenting private real property despite the fact that documenting this in another manner (like with a regular camera) would be legal.   The provisions are also under inclusive based on their exceptions for other uses of drones that pose the same risks as journalism uses would.  For example, commercial purposes are allowed under the No-Fly Provisions, but there is no explanation of why newsgathering by drone poses threats different than commercial purposes.

Based on this, Judge Pitman found the statute violated the First Amendment.

Vagueness

Additionally, Plaintiffs claim the statute is unconstitutionally vague.  Although the court need not address this issue having already deemed the statute unconstitutional under the First Amendment, Judge Pitman did so to “avoid any confusion.”  He found the terms “surveillance” and “commercial purposes” both unconstitutionally vague.  Neither were defined in the statute, making it impossible for a person to know whether their intention constitutes a prohibited activity.

What Happens Next?

The Defendants could appeal the decision to the United States Court of Appeals for the Fifth Circuit, but for now, this decision is in effect. The challenged provisions of the statute (Sections 423.002, .003, .004, .005, .0045, and .0046) are now stricken and inapplicable.

Additionally, the Texas Legislature could propose an amended version of the statute in the next session seeking to remedy the issues the court has identified with this version.

Why This Matters?

Over the past several years, I have gotten a number of calls from people concerned about drones flying over their private property. This was the only statute in Texas expressly addressing that issue.  There may still be other legal options or protections (criminal or civil trespass, for example), but the protections this statute offered private landowners and critical infrastructure facilities like feedlots or dairies no longer exist.

Furthermore, a number of other states also have drone privacy statutes.  Could this opinion lead to lawsuits in other states making similar challenges?  Time will tell.  The National Agricultural Law Center has a compilation of drone privacy statues around the country.  Click here to find out if there is a law in your state.

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