In a decision that is likely to restrict the rights of Texas photojournalists to use drones in their reporting, a federal appeals court panel has reversed a lower court ruling that had found major portions of the state’s restrictive drone law unconstitutional.
On Oct. 23 a three-judge panel of the 5th Circuit Court of Appeals handed down a ruling overturning a 2022 district court decision that had found that Chapter 423 of the Texas Government Code violated the First Amendment rights of journalists. The appeals court ruling reinstates the most controversial sections of the law, which had been struck down by the lower court. However, the decision leaves the door open for journalists to challenge the application of the law on a narrow case-by-case basis.
In a 38-page ruling, the appeals court panel, led by Circuit Judge Don Willett, found that U.S. District Judge Robert Pitman had erred in a March 2022 ruling when he agreed that the plaintiffs in the case had “a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent.”
However, Alicia Calzada, attorney for the National Press Photographers Association (NPPA), which is representing the plaintiffs in the case, disputed the appeals court’s assertion. Calzada, said Willett had mischaracterized the plaintiffs’ position.
“Contrary to the characterization of the court, we have never claimed a sweeping First Amendment right to use unmanned aerial drones in a manner that constitutes an invasion of privacy,” she said in a statement. “Invasion of privacy was a violation of the law before this statute was passed, and continues to be so, and we have never claimed otherwise.”
Plaintiffs in the case include Joseph Pappalardo, a freelance photojournalist, and two journalism associations, NPPA and the Texas Press Association, which represents approximately 400 member newspapers. Also named individually in the case were NPPA members, Brandon Wade and Guillermo (Billy) Calzada, husband of Alicia Calzada.
The three individual plaintiffs, all photojournalists and FAA-certified drone pilots, had testified in the original case that Chapter 423 had interfered with their job by restricting their use of drones in reporting the news. Pappalardo also had claimed that he was “concerned that using a [drone] for journalistic purposes would put [him] at risk of criminal penalties and subject [him] to liability in a civil lawsuit” according to the appeals court ruling.
Billy Calzada, a photojournalist with the San Antonio Express-News, testified that after he flew his drone near the site of an apartment fire in San Marcos, Texas, he was told by a San Marcos police officer that he had violated state law by taking pictures with his drone and that, if he published them he would be violating the law again.
Wade, another freelance journalist, testified that the law gave a private entity, the Texas Rangers baseball team, a veto over his ability to report on the construction of a stadium, which was being built using public funds. In 2018 the Fort Worth Star Telegram gave Wade the assignment of using his drone to document the construction of the Rangers new ballpark. Citing Chapter 423, which prohibits the use of drones to photograph private property, the Rangers refused to give him permission to complete the assignment.
The team, however, hired Wade to use his drone to film the stadium construction for the Rangers’ own public relations purposes. This meant that the Rangers owned the copyright to the footage, preventing Wade from using it for his own purposes and further profiting from it. Wade testified that he “lost thousands of dollars” as a direct result of this application Chapter 423.
Named as defendants in the case were Steven McCraw, director of the Texas Department of Public Safety; Dwight Mathis, chief of the Texas Highway Patrol; and Kelly Higgins, district attorney of Hays County, Texas.
In its ruling, the appeals court rebuffed the plaintiffs’ challenge to two main provisions of the drone law: The Surveillance provision and the so-called “No-Fly” provision. The Surveillance provision holds that a person commits an offense if they use a drone “to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance.”
The No-Fly provisions make it illegal to fly a drone above critical infrastructure facilities, such as prisons and large sports venues.
The plaintiffs had argued, and the lower court agreed, that because the law contained exceptions, allowing drone surveillance for certain purposes — such as survey work or academic research — but not for newsgathering, Chapter 423 was in effect suppressing the free speech rights of journalists.
However, the appeals court panel found that argument unconvincing. “While the Surveillance provisions no doubt have an incidental effect on speech, they more closely resemble conduct regulations (aerial surveillance), not regulations of expression,” the decision states.
Similarly, the panel rejected the plaintiffs’ arguments that the law’s No-Fly provisions constituted violations of the plaintiffs’ free speech rights. “Because the No-Fly provisions have nothing to do with speech or even expressive activity, they do not implicate the First Amendment.”
The appeals court panel remanded the case to the lower court with instructions to enter judgment on the plaintiffs’ constitutional claims on the two major provisions in the defendants’ favor. It also upheld the lower court’s rejection of the plaintiffs’ claim that FAA regulations would pre-empt the state from exercising jurisdiction over drone flights.
“Quite the contrary, federal law expressly contemplates concurrent non-federal regulation of drones, especially where privacy and critical infrastructure are concerned,” the ruling states.
Although the panel acknowledged the plaintiffs’ contention that drones “have become quintessential tools for documenting newsworthy events,” that did not give the journalist plaintiffs any right to not comply with the restrictions spelled out in the law.
“The Supreme Court has stated, in no uncertain terms, that ‘the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.’”
The plaintiffs in the case expressed disappointment in the appeals court decision, and their attorneys are weighing their options for appeals.
“I just would say I’m disappointed in the recent ruling, and we’ll just hope for the best and argue our case going forward,” Brandon Wade said in an interview.
In an interview, Alicia Calzada said in his opinion, Willett takes the plaintiffs’ First Amendment argument and “almost flips it on its head.
“What we said was not that we have a right to invade people’s privacy, but what we said was this law goes well beyond just protecting privacy, and in fact interferes with valid First Amendment activities, protected news-gathering activities,” she said.
She pointed out that Chapter 423 prohibits the use of a drone to capture images, even though those same images would be perfectly legal if the footage was shot from a helicopter or even a tall building.
“And so, our argument has never been that journalists should have a right to invade people’s privacy on a level that other people do not. Rather, our argument has been that this statute is far too overbroad to the extent that it reaches protected speech and there is no privacy implication in a lot of the photography and filming that is banned by the state,” she said.
In her statement, Calzada said that as a result of the ruling, “journalists in Texas will need to re-evaluate their use of drones, including evaluating their risk tolerance.”
She noted that although the appeals court ruling upheld the statute as a whole, it also gave photojournalists charged with violating Chapter 423 the possible defense opportunity to mount an “as-applied” challenge, by arguing that a particular application of the statute violated the First Amendment.
In a warning to its members, NPPA stressed its commitment to ethical photojournalism standards and issued a warning to journalists who decide to use drones in their reporting in spite of the appeals court decision. “Going forward, if you decide to continue using drones for journalism in Texas, it’s particularly important that you continue to avoid any activity that could be construed as an invasion of privacy.”
Featured photo by Brandon Wade. Photos of raised garden beds in the greater Dallas area were shot for The Dallas Morning News, in March 2018, before the initial court ruling that found portions of Chapter 423 unconstitutional. The paper was reluctant to publish the photos due to the drone law, and would only publish ground-based images of the same subject.