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Thursday, March 31, 2022
MFIA Secures the Right of Journalists in Texas to Use Drones
On Tuesday, a federal court in Austin held that a Texas law broadly restricting the use of drones to capture images violated the First Amendment rights of journalists. U.S. District Judge Robert Pitman struck down the law on the grounds that it improperly restricted the use of drones based on the content of the images recorded and the use for which the images were taken. He also found the law unconstitutionally vague.
The Media Freedom & Information Access Clinic represented the plaintiffs in the case, together with co-counsel from the National Press Photographers Association (NPPA) and the nonprofit advocacy organization Public Justice. When the clinic first brought the lawsuit in September 2019 and in December 2020, the federal judge overseeing the case denied the state’s request to dismiss the case.
In adopting the Texas Privacy Act regulating the use of drones in 2013, the Texas legislature said the law was needed to protect private property, individual privacy, and the safety of critical infrastructure facilities. The NPPA, together with fellow plantiffs the Texas Press Association and photojournalist Joseph Pappalardo, objected that the broad sweep of the law unconstitutionally restricted their ability to use drone in their newsgathering activities.
Among other consequences, the law imposed penalties for using drones on private property “with intent to conduct surveillance” and imposed criminal penalties for flying drones over critical infrastructure facilities, such as oil and gas pipelines, chemical manufacturing plants, and animal feeding operations, or correctional facilities and sports venues. While both provisions had exceptions — the former for research and a number of other listed purposes and the latter for “commercial” purposes — neither exempted newsgathering.
In the litigation, plaintiffs established that drones are an increasingly important tool for newsgathering and that the law actively restricted or dissuaded their use by reporters. For example, in 2018, an NPPA member who was using a drone to report on an arson fire was told by police that he faced criminal penalties under the law if he continued to use the drone or published any of the images he had already captured. In other documented cases of the chilling effect of the statute, newspapers have refused assignments to journalists using drones and declined to publish drone photographs out of fear of prosecution.
Since the law’s restrictions on drone use were based on the content of the images captured, Pitman found that they were subject to strict judicial scrutiny. Applying this heightened review, the judge found that the law was neither necessary nor narrowly tailored. The law was not necessary because Texas already had other laws protecting privacy, property, and safety that applied fully to drones and the state presented no evidence that these laws were not sufficient to address the concerns that motivated passage of the drone law. The law was not narrowly tailored because it was both over-inclusive — restricting drone use in circumstances where there was no significant privacy or safety interests — and underinclusive in exempting preferred uses of drones that posed the same privacy and safety risks as the prohibited uses.
The court also found unconstitutionally vague the undefined terms “surveillance” and “commercial purposes” used in the law to distinguish permitted uses from prohibited ones. The vagueness of the law dissuaded journalists from using drone photography out of fear that their activities might be construed as “surveillance” or “non-commercial,” rendering them subject to both criminal prosecution and civil penalties. As MFIA noted, the “surveillance” provision that applied to images taken on private property effectively outlawed the use of drones over 95% of Texas land.
“This success in this challenge to the Texas law reflects the hard work of talented YLS students over the past four years,” said MFIA clinic director and Floyd Abrams Clinical Lecturer in Law David Schulz ’78. “Students in the MFIA clinic did the legal research needed to demonstrate that the First Amendment protects against unreasonable restrictions on those who gather the news and developed the factual record needed to demonstrate how the Texas drone law imposed just such an unreasonable restriction.”
A total of 16 MFIA students have worked on the case over the past four years: Sam Aber ’22, Timur Akman-Duffy ’21, Liza Anderson ’24, John Brinkerhoff ’18, Joe Burson ’20, Elinor Case-Pethica ’23, Rachel Cheong ’19, Allison Douglis ’18, Isabel Farhi ’19, Meenu Krishnan ’18, Roman Leal ’22, Taylor Morris ’21, Wendy Serra ’20, David Stanton ’19, Tim Tai ’24, and Emily Wang ’22. Four MFIA fellows also worked on the case: Hannah Block-Wehba, Michael Linhorst ’17, Jennifer Pinsof, and Francesca Procaccini.
MFIA is 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.