In MFIA Case, 5th Circuit Rejects Challenge to Drones Law and Supreme Court Denies Review

The fall term brought an end to a long-fought battle over the constitutionality of Texas’ drone laws — Chapter 423 of the Texas Government Code — in a case first brought by the Media Freedom & Information Access Clinic (MFIA) in 2019.

The law purports to protect privacy by preventing the use of a drone to capture any image of private property or an individual on private property with the “intent to conduct surveillance.” It further bars publication of any such image captured with a drone and imposes criminal penalties for flying a drone over “critical infrastructure” like chemical plants, hog farms, and correctional facilities. After its enactment, a journalist was threatened with prosecution for using his drone to report on a fire, and several major newspapers refused to publish any photo taken with a drone for fear of prosecution, according to the case.

MFIA, together with co-counsel from the National Press Photographers Association (NPPA), and the nonprofit advocacy organization Public Justice, challenged the law in 2019. Their complaint alleged that the drone restrictions violated the First Amendment by imposing content-based prohibitions on speech and by unduly burdening journalists’ right to gathering the news, and that the criminal law was vague and overbroad in ways that violated the due process clause of the Constitution. 

The clinic’s complaint, filed on behalf of the National Press Photographers Association, the Texas Press Association, and an individual photojournalist, survived a motion to dismiss in 2020.

Following discovery, Judge Robert Pitman of the U.S. District Court for the Western District of Texas granted summary judgment declaring that the law violated the First Amendment and the due process clause and enjoined its enforcement. Because application of the law’s restrictions depended upon the content of an image captured with a drone, the court found the restrictions subject to strict judicial scrutiny. The court said the law could not survive strict scrutiny because most images taken of private property would not invade any protectible privacy interest and 95% of Texas land consists of private property. Texas also failed to demonstrate that other long-standing privacy protections were insufficient to address privacy invasions by drones.

The court further found that the law’s failure to define “surveillance” rendered it unconstitutionally vague, as the law dissuaded journalists from conducting any drone photography out of fear of criminal prosecution and civil penalties.

On appeal, a panel on the 5th U.S. Circuit Court of Appeals reversed course. After withdrawing and replacing its original opinion in response to the clinic’s request for rehearing, the panel found that the Texas drone restrictions were not subject to strict scrutiny because they only applied to drones flying above eight feet. The appeals court also rejected the notion that the law impermissibly burdened newsgathering because the press had operated for centuries without constitutional protection for the use of drones. The panel instead held the restrictions to a form of intermediate scrutiny, which they passed since the restrictions further a substantial interest in protecting privacy rights.

The 5th Circuit then found that the named plaintiffs lacked standing to bring their due process claim. While the record did establish that the law chilled journalists’ speech, according to the clinic, the panel held that plaintiffs could not bring their vagueness challenge absent an arrest or specific threat of enforcement against a journalist.

Following the reversal by the 5th Circuit, MFIA and co-counsel sought leave to appeal to the U.S. Supreme Court. Their writ of certiorari asked the court to review the 5th Circuit’s unique standing requirement for an arrest or specific enforcement action to bring a facial due process challenge, and to resolve a circuit split on the definition of a “content-based” restriction requiring strict scrutiny. The Supreme Court denied the writ in October 2024, leaving the 5th Circuit’s reversal in place.

“It is unfortunate the court of appeals chose not to reach the merits of the claim for procedural reasons,” said MFIA Director David Schulz ’78, “but the theory of constitutional protection advanced by the drone journalists in this case will apply fully if and when the law is enforced against a journalist using a drone to gather the news in Texas.”

The MFIA clinic is dedicated to increasing government transparency, defending the essential work of newsgatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.