Cameron Langford

(CN) — In a loss for Texas journalists, a Fifth Circuit panel on Monday ruled a state law restricting use of drones does not violate the First Amendment.

While flying his drone over a San Marcos, Texas apartment complex where several people had died from an arson fire in July 2018, San Antonio Express-News multimedia reporter Billy Calzada was approached by a federal agent.

The agent told him he was interfering with a federal investigation and called San Marcos police.

An officer told Calzada he was violating Chapter 423 of the Texas Government Code and could be charged with misdemeanors, with penalties of up to 180 days in jail and a $10,000 fine, if he continued to use his drone to report on the fire or if he published any of the photos or footage he had taken with it.

She did not ticket Calzada, but the National Press Photographers Association and Texas Press Association, of which Calzada and the Express-News are members, challenged the drone regulations in a federal lawsuit in September 2019, claiming the laws chilled speech and were vague and overbroad, thereby infringing on the groups' members' First and 14th Amendment rights.

The lawsuit named Steve McCraw, director of the Texas Department of Public Safety; Dwight Mathis, chief of the Texas Highway Patrol; and the district attorney for Hays County as defendants.

Passed by the state Legislature in 2013 and amended three times before the plaintiffs filed suit, the regulations criminalize using unmanned aerial drones to film private individuals and property without consent, as well as flying drones within 400 feet over critical infrastructure such as prisons, oil and gas drill sites and large sports venues.

A person who was photographed or filmed on their private property can also sue the drone operator for civil penalties of $5,000 to $10,000 per violation.

Joseph Pappalardo, a freelance journalist and plaintiff in the suit, said in court filings that he stopped using his drone for assignments in 2017 after a media outlet for which he was working said it wouldn't pay his legal defense if he took images in violation of the state law.

He lamented that it had prevented him from taking aerial photos to include with his reporting on Hurricane Harvey, which swamped the Houston area with widespread flooding in August 2017, and it put him at a disadvantage compared with reporters in states that aren't bound by such restrictions.

U.S. District Judge Robert Pitman, a Barack Obama appointee, sided with the plaintiffs in a March 2022 summary judgment order, agreeing with them that the Chapter 423 provisions were unconstitutional.

He issued an injunction blocking state and county officials from enforcing them.

Pitman’s order led the Dallas Morning News to revoke its no-drone policy. Texas journalists like Pappalardo and Calzada went back to using the aircraft for their work.

After the Texas Attorney General’s Office appealed to the Fifth Circuit, however, a three-judge panel of the court on Monday reversed Pitman's ruling and directed him to enter a judgment for the defendants.

U.S. Circuit Judge Don Willett, writing for the unanimous panel, said the plaintiffs claim a “sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent” and to “fly drones at low altitudes over critical infrastructure.”

But he said nothing in the “original understanding of the First Amendment,” nor within Fifth Circuit precedent, endorses their claims.

“In fact, nothing in the Constitution permits an individual to film his neighbor in the privacy of her own home — stealthily from the air — for purposes of conducting ‘surveillance.’ Under plaintiffs’ novel theory of the First Amendment, laws prohibiting stalking — and even voyeurism — would fall in the name of ‘free speech,’” added Willett, a Donald Trump appointee.

The panel decided the plaintiffs lacked standing for 14th Amendment claims because none of them had ever been arrested or prosecuted for a Chapter 423 transgression.

Similarly, McCraw and Mathis, the state police officials, are entitled to state sovereign immunity, the panel found, since during the decade the statute has been on the books, neither the officers nor their agencies has ever enforced it.

Though the Department of Public Safety, which includes Texas highway patrolmen and Texas Rangers, has issued six warnings and one citation for actions involving drone operators, none of the incidents pertained to Chapter 423, Willett wrote.

On the merits, the panel determined that the journalists' First Amendment dispute with the no-fly provisions fails because operating a drone within 400 feet over a prison, sports venue or critical infrastructure is not inherently expressive. “And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions,” Willett wrote. (Emphasis in original.)

In the lower court the plaintiffs convinced Pitman that drone surveillance restrictions should be evaluated based on strict scrutiny, the highest standard of review for laws affecting constitutional rights. He agreed they are a content-based restrictions on free speech and favor certain speakers — for instance, there are exemptions to the surveillance rule for scholars using drones for academic research and for the military to conduct training and missions.

But the appellate court decided intermediate scrutiny — which permits content-neutral regulations if they further an important governmental interest — was the correct standard.

The Fifth Circuit rejected the notion that because police might look at drone-captured images to determine if they are illegal, the restrictions therefore are content-based. Instead, Willett opined, the surveillance provisions are based on how the picture is taken; what is in the picture is irrelevant.

“The very same aerial image can be unlawfully captured using a drone but lawfully captured using a helicopter a tall ladder, a high building, or even a really big trampoline," he wrote, noting that Chapter 423 also permits using drones to take images of private property as long as the machine is below 8 feet. (Emphasis in original.)

Willett’s helicopter reference addressed plaintiffs’ contention that drones provide journalists with a safer and cheaper alternative to renting a helicopter to get aerial images.

It was not a complete slam dunk for Texas.

The panelists stressed that Chapter 423 allows using drones to capture images on public property and people thereon, and said its holding does not preclude all First Amendment and due process challenges of the regulations.

“It is possible that, in an as-applied challenge, a plaintiff or defendant may persuasively show that a particular enforcement of Chapter 423 runs afoul of free speech or fairness principles. But this is not the case,” Willett wrote in conclusion.

He was joined by Senior U.S. Circuit Judge Edith Brown Clement and U.S. Circuit Judge Jennifer Walker Elrod, both George W. Bush appointees.

In a statement to its Texas members, general counsel for the National Press Photographers Association said, "We wholeheartedly disagree with the appellate court and we will be discussing our options with the leadership and the other attorneys on the case."

The Texas Attorney General's Office did not respond to a request for comment on the order.