Federal Judge Allows MFIA Lawsuit Challenging Texas Drone Law to Proceed

A case defending the newsgathering rights of photojournalists survived an important test this week. Brought by the Media Freedom and Information Access (MFIA) Clinic at Yale Law School and Public Justice on behalf of the National Press Photographers Association (NPPA), the Texas Press Association, and an independent photojournalist, the case asserts that a Texas law governing the use of drones is unconstitutionally vague and unduly burdens the constitutionally-protected act of gathering the news.

In a ruling released on November 30, 2020, a federal court in Austin denied the state’s request to dismiss the lawsuit for failure to state a claim and suggested the Texas drone law may well be unconstitutional on its face. MFIA first filed the lawsuit in September 2019.

The Texas law prohibits the use of drones for “surveillance,” an undefined term that the lawsuit alleges could allow civil and criminal penalties to be imposed on journalists for using drones in their newsgathering. The law’s surveillance provisions are so vague and broad, the plaintiffs’ legal team argued, that “it’s difficult to know whether you’re breaking the law.”

The law also prohibits using drones near food processing facilities, oil and chemical plants, and other critical infrastructure for “commercial” purposes, another undefined term that according to the lawsuit could be read to include use by a professional journalist. The lawsuit alleges that both provisions are impermissibly vague and restrict First Amendment activity in a manner that is not narrowly tailored to serve a substantial governmental interest. The effect of the law, the complaint contends, is to suppress news coverage, and specifically to prevent reporting on potentially dangerous or embarrassing conditions at sites of public interest.

The legal team behind the case noted that newsgathering was originally included as an exemption to the drone law restrictions when it was first discussed in the Texas Legislature, but this exemption was removed shortly before the law passed in 2013. At the time, there was strong opposition to the law from visual journalists across the state, who pointed out the unconstitutional restrictions the law would impose if it covered journalists, and the chilling effect it would have on newsgathering activities and speech.

The ruling this week by U.S. District Judge Robert Pitman is not final for the case, but the court agreed that the term “surveillance” used in the Texas statute is too vague to provide reasonable notice of what activity is allowed and what is illegal. Judge Pitman concluded that the “plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct — taking photos and video for newsgathering purposes.”

Reacting to this week’s ruling, the legal team behind the case described it as “a victory for the First Amendment, and for tenacious and innovative visual journalism,” according to Floyd Abrams Clinical Lecturer in Law David Schulz ’78. The Clinic promised further action to bring the case to a conclusion in light of the ruling, and expressed hope that the law would be struck down as unconstitutional soon.

The plaintiffs in the case are represented by the MFIA Clinic, Public Justice, and Jim Hemphill of Austin law firm Graves Dougherty Hearon & Moody, P.C. Yale Law students Timur Akman-Duffy ’21, Roman Leal ’22, Emily Wang ’22, and Joseph Burson ’20 all worked on the case.

By Leah Ferentinos