Judge Strikes Down Texas Drone Law as Unconstitutional, Saying It Effectively Bans Drones for Journalism

BY Zacc Dukowitz
6 April 2022

In a win for the drone industry, a federal judge in Texas recently found that a state law barring the use of drones for taking photos and videos of private property was unconstitutional.

In his decision, Judge Robert Pitman referenced the first amendment of the constitution, holding that using a drone to take photos and videos “finds just as much protection in the First Amendment as the images themselves do.”

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On its face, the Texas drone law in question may have seemed like it presented a reasonable restriction, since it bars taking aerial photos or videos “with the intent to conduct surveillance on the individual or property captured in the image.”

But given the vagueness of the law’s language, the law could easily be interpreted as applying not just to bad actors but also to those using drones for journalism or for other legitimate purposes.

And that’s exactly what happened.

Over the last several years, Texas law enforcement used the law to block reporters from using drones in their work in at least two separate instances, and these incidents led to the lawsuit that was just decided.

The Texas Law and the Case Against It

The Texas law that was recently overturned is Chapter 423 of the Texas Government Code.

Here is the law’s specific language:

OFFENSE: ILLEGAL USE OF UNMANNED AIRCRAFT TO CAPTURE IMAGE. (a) A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.

After Chapter 423 was passed, law enforcement began using it to threaten reporters with arrest for using drones in their work.

It’s easy to understand why law enforcement interpreted the law this way—reporting presents an instance in which someone may use a drone to “capture an image . . . with the intent to conduct surveillance.”

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This interpretation was foreseen by the National Press Photographers Association (NPPA) back in 2013, when Chapter 423 was first proposed.

At the time, the NPPA publicly advocated against the law, stating that its language would effectively ban many legitimate types of drone operations, including journalism.

And the NPPA was right.

In at least two documented instances, law enforcement used Chapter 423 to stop a reporter from using a drone in their work.

In one incident, a Dallas-based freelancer named Brandon Wade was denied permission to fly so he could get pictures of a publicly funded construction project in the city.

In another incident, a photojournalist named Billy Calzada at the San Antonio Express-News was photographing the aftermath of a fatal fire with his drone in San Marcos, Texas when ATF agents and the San Marcos police threatened him with arrest.

Following these incidents, the NPPA sued the state of Texas to overturn Chapter 423. Its lawsuit was filed in 2019.

The suit was brought against the Texas law not only by the NPPA, but also by the Texas Press Association and freelance reporter Joe Pappalardo. Supporting the case were the Texas Broadcasters Association, the Reporters Committee for Freedom of the Press, AUVSI (Association for Uncrewed Vehicle Systems International), and CTA (Consumer Technology Association).

About the Judge’s Decision

In his decision, Judge Pitman gave the following reasons for striking down Chapter 423:

1. First Amendment Violations

The first amendment protects people’s right to free expression, and this protection extends to images.

Since the Texas law effectively created a “content-based restriction” in which the content of an image (i.e., an image of a person’s private property) was used to determine its legality, the law was inherently unconstitutional because laws cannot be made regarding the types of images that are legal or illegal.

It’s important to drill down on this argument a little, since the law targeted the tool (i.e., the drone) used to gather the images, not the images themselves.

In the ruling, Judge Pitman explicitly stated that the process of creating photos and videos with a drone “finds just as much protection in the First Amendment as the images themselves do.” That is, the tool that captures the photos is protected just like the photos themselves are—regardless of the tool.

2. Too Broad and Too Vague

Judge Pitman further found that the law was unnecessary, because it targeted drones specifically as a tool for collecting images.

Surveillance for illegal purposes is already illegal. So saying that doing illegal surveillance with a drone is also illegal is redundant, and it also casts far too wide a net over many potentially legal types of drone operations.

The judge also took issue with the general vagueness of the terms “surveillance” and “commercial purposes” used in the law. Neither of these terms were defined in the statute itself, and he found that this vagueness alone rendered the law void.

Read the full ruling from Judge Pitman here.

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