MFIA Files Suit Challenging Texas Drone Law

Yale Law School’s Media Freedom and Information Access Clinic (MFIA) is representing the National Press Photographers Association (NPPA), the Texas Press Association, and an independent journalist in a lawsuit filed on September 26, 2019, challenging a Texas law that makes it a crime for visual journalists and others to use drones for newsgathering and other similar activities. The lawsuit was filed in federal court in Austin, Texas.

Texas’s drone law — Texas Government Code Chapter 423 — is among the most restrictive in the country, according to the clinic. Chapter 423 makes it a crime and imposes civil penalties on journalists’ use of drones to capture images of a person or privately owned real property, regardless of where the drone is located. The restriction is on “intent to conduct surveillance,” a phrase not defined in the statute that is vague enough to include most newsgathering activities and chill legitimate speech.

A subsection of the code provides more than 21 exemptions — including oil and gas, agribusiness, and real estate brokers — from the criminal and civil liability otherwise imposed, but notably does not exempt the use of drones to capture images for the purpose of visual journalism or newsgathering. The penalties for violating Chapter 423 range from a $500 fine to a fine of up to $2,000 and/or 180 days in jail for a single image; each image constitutes a separate offense, both when captured and again if it is used or distributed, according to the lawsuit.

The lawsuit also challenges a provision of the Texas drone law that completely bans all drone use at an altitude lower than 400 feet (above ground level) for any purpose above “critical infrastructure facilities,” “correctional facilities,” and “sports venues.” Critical infrastructure facilities are defined as 19 different kinds of facilities, including oil and gas drilling sites and pipelines, correctional facilities, animal feedlots, and petroleum and alumina refineries. The 400-foot floor acts as a per se ban of drone operations because under Federal Aviation Administration regulations, drones are not permitted to fly higher than 400 feet above ground level, the clinic said.

The suit alleges that the law violates the First Amendment because it is a restriction on speech that is not narrowly tailored in furtherance of a substantial governmental interest. The suit also argues that the law violates the Supremacy Clause because it infringes upon the FAA’s exclusive primacy over national airspace.

The real purpose of the law, the suit argues, is to suppress news coverage of potentially dangerous or embarrassing conditions at these sites of public interest. This includes, for example, the negative environmental impacts of some oil, gas and chemical manufacturing facilities.

Alicia Calzada, NPPA’s deputy general counsel, testified against the bill at a 2013 legislative hearing. “We advised the legislature of the chilling impact of this law when they were considering it and our warnings have come true. Our members worry about the legal risk everytime they put a drone in the air — and some of our members avoid using drones in this state altogether.”

The Texas Legislature passed Chapter 423 in 2013 over forceful opposition from visual journalists across the state, including the National Press Photographers Association and the Texas Press Association, who advised the Legislature of the unconstitutional restrictions the proposed law would impose and the chilling effect it would have on newsgathering activities and speech.

The Texas Legislature amended Chapter 423 in 2015, 2017, and 2019. The amendments added additional exemptions from the law’s surveillance provisions — but not for journalists — and added two sections that ban the use of Unmanned Aerial Vehicles above any location classified as “a correctional facility, detention facility, or critical infrastructure facility” or a “sports venue.” Independent journalist and Plaintiff Joseph Pappalardo covered the barriers created by Chapter 423 for visual journalists in Texas for the Dallas Observer in an award-winning investigative piece.

“The National Press Photographers Association has been an active stakeholder in the use of drones for newsgathering for many years, working cooperatively with the FAA and other government agencies as well as first responders and news organizations to create common-sense rules,” said Mickey H. Osterreicher, NPPA general counsel. “It is extremely unfortunate that Texas has chosen to impose such ‘constitutionally suspect’ restrictions on drone use despite our best efforts,” he added.

Texas’s Drone Law has had a serious chilling effect on visual journalists in the State of Texas and is unquestionably hampering important newsgathering activities, the lawsuit states. For example, NPPA member Brandon Wade was hired by the Center for Investigative Reporting to photograph a facility housing immigrant children where CIR reported children had been mistreated. Because of the restrictions and vagueness of the drone law, Wade had to limit where he flew his drone, which hampered his efforts to capture newsworthy images of the treatment center. NPPA member Billy Calzada was using a drone to capture images of the aftermath of a deadly fire that killed six people in San Marcos, Texas when he was threatened by police with Chapter 423.

These are just a few examples of the negative effects of Texas’s Drone Law, according to the clinic. Had its restrictions not been in place, the suit alleges, plaintiff Pappalardo would have used his drone to take aerial photographs to aid in coverage of newsworthy topics like Hurricane Harvey (including a panic at the gasoline pumps that the storm caused); flood and wind damage in other storms, house fires, construction projects; urban sprawl; the removal of homeless encampments; and the removal of a Confederate statute from a public park. Instead, Pappalardo allowed his federal drone license to expire, since Chapter 423 prevented him from using his drone for journalistic purposes.  

The plaintiffs in the case are represented by Yale Law School’s Media Freedom and Information Access Clinic (MFIA), Public Justice, and Jim Hemphill of Austin law firm Graves Dougherty Hearon & Moody, P.C.

MFIA is a law school clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The clinic is a program of the Abrams Institute for Freedom of Expression and the Information Society Project. 

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