Texas District Court Strikes Down State Drone Law on First Amendment Grounds

On March 28, the United States District Court for the Western District of Texas found that a Texas law restricting drone use ran afoul of the First Amendment. The law imposed civil and criminal penalties for drone-based newsgathering, while also prohibiting drone flights over certain critical infrastructure facilities. The case was brought by the National Press Photographers’ Association, the Texas Press Association, and a Texas drone operator.

Earlier in the case, the district court had granted a motion by the State of Texas to dismiss the plaintiffs’ claims that the state law was preempted by Federal Aviation Administration (FAA) regulations because they improperly sought to regulate where aircraft could fly. In January 2020, Wiley had filed an amicus brief on behalf of the Association for Unmanned Vehicle Systems International (AUVSI) and the Consumer Technology Association (CTA) opposing the motion to dismiss the preemption claims. The court recognized that state and local regulation of flight could run afoul of federal law, but held that the Texas law did not conflict with federal regulations. While the court granted the motion to dismiss the preemption claims, it allowed the First Amendment claims to continue.

Plaintiffs challenged two distinct parts of the Texas drone law on First Amendment grounds: the “surveillance” provision and the “no-fly” provision. The surveillance provision prohibited using “an unmanned aircraft to capture an image of an individual or privately owned real property ... with the intent to conduct surveillance on the individual or property captured in the image.” Plaintiffs argued that this was an unconstitutional content/speaker-based restriction as well as unconstitutionally vague and overbroad. Second, plaintiffs claimed that the restrictions on flight over certain types of infrastructure were impermissible because they exempted UAS flights for “commercial purposes,” but not for newsgathering. Plaintiffs argued this commercial exemption was unconstitutionally vague.

In denying the motion to dismiss the First Amendment claims, the court had already signaled that it believed these provisions would be subject to strict scrutiny, and that they likely would not be able to meet it. In its March 28 decision, the court followed through, holding that newsgathering via drone is protected expression under the First Amendment. The court determined that both the surveillance and no-fly provisions were subject to strict scrutiny because they were content-based restrictions. The surveillance provision’s applicability depended on the content of the recorded images and the speaker’s identity, while the no-fly provision’s application depended on the type of newsgathering conduct.

The court also concluded that the law could not survive strict scrutiny, because the defendants failed to demonstrate that the challenged law was “actually necessary” to achieve a compelling governmental interest, as well as narrowly tailored to achieve that interest. The court held that the law was not necessary because there are alternative legal channels for protecting the state’s interests, such as existing criminal trespass law and tort claims, including intrusion upon seclusion. The provisions were not narrowly tailored because they were both over and underinclusive: overinclusive because the law effectively outlawed newsgathering on private property (which the court noted constitutes 95 percent of the state), and underinclusive because they outlawed use of drones in newsgathering while exempting other similar activities.

While the court found that the law was void on First Amendment grounds, the court went on to hold that the law would also be void for vagueness. Specifically, the court found the use of the phrases “surveillance” and “commercial purposes” were vague enough to dissuade journalists from engaging in drone photography, chilling their speech.

The Texas court’s decision represents an important holding for journalism, the First Amendment, and the use of drones. It suggests that drone-specific regulations at the state and local level have to not only steer clear of federal regulation of the airspace, but also must carefully avoid impinging on the First Amendment rights of drone operators to gather news using their aircraft. The case also shows that bans on certain types of image capture or drone flights may face an insuperable hurdle. Still, the case may be appealed to the Fifth Circuit, and those with an interest in the First Amendment or drone flights should carefully track its path.