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Texas Drone Law Comes Under Media Scrutiny

In 2017, the Texas legislature enacted new law regulating where you can fly a drone, or as Texas law refers to them, “unmanned aircraft”. Texas legal restrictions on the operation of drones are set out in Chapter 423 of the Texas Government Code. The newest provisions of the drone law went into effect September 1, 2017, and I wrote a blog about the changes at that time, entitled “I can’t fly my drone anywhere in Texas?”.

You definitely may not fly a drone in Texas anywhere, and in fact, Texas law is quite restrictive and dictates drone usage over private and public property. It is illegal in Texas to fly a drone above “critical infrastructure facilities,” but interestingly this type of “facility” includes both facilities publicly and privately owned. The list of “critical infrastructure facilities includes prisons, sports venues, any facility related to electricity, facilities related to the petroleum industry, telecommunication facilities, water facilities — you get the picture.

In September, a lawsuit was filed legally challenging the Texas drone laws. The suit was filed by Yale Law School’s Media Freedom and Information Access Clinic, in federal court, (U.S. District Court for the Western District of Texas, in Austin) on behalf of the National Press Photographers Association, the Texas Press Association and a freelance reporter, Joseph Pappalardo (articles published in the Dallas Observer and the Corpus Christi Caller Times). The defendants named in the case are Steven McCraw, Director of the Texas Department of Public Safety, Ron Joy, Chief of Texas Highway Patrol, and Wes Mau, District Attorney of Hays County (responsible for the City of San Marcos Police Force).

The suit argues the Texas drone statute violates the U.S. Constitution and restricts “newsgathering activities,” and that photojournalists are singled out by provisions of the drone statute because the Texas statute exempts twenty-one specific uses of drones from criminal and civil liability under the drone surveillance provisions. The Plaintiffs assert the exemptions listed in the law “permit a wide variety of individuals and organizations to use drones for information-gathering purposes — including individuals in industries such as telecommunications, real estate, surveying, engineering, and insurance, among others.” But, there is no exemption for journalists that regularly use photos or video when reporting.

Plaintiffs also argue that the restrictions on flying drones over critical infrastructure facilities violate the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, cl. 2. In other words, the state of Texas is “impinging on the federal government’s sole and exclusive authority to regulate the national airspace and aviation safety.”

The legal argument is that the drone law violates freedom of speech. Technically, a First Amendment violation regarding speech regulation. Plaintiffs claim not only violations of their rights to freedom of speech, but also that no-fly provisions in the statute “chill the rights” of journalists from engaging in “constitutionally protected expressive activity.”

The Defendants in the suit are law enforcement agencies that arguably work hard every day to protect the citizens of Texas. In order to preserve and protect the safety of the public, some restrictions regarding drones in the air recording images of prisons, oil company infrastructure or even a football stadium makes perfect sense to this attorney. Surely, it is painstakingly obvious that video from a drone flying above a prison will lead to obtaining information that may prove detrimental to the safety of those that work in the prison and those that live around the prison. This suit comes at a time when a variety of businesses are increasing their use of drone captured images, including law enforcement agencies. It will be interesting to see where the law falls on this issue and whether the Media Freedom and Information Access Clinic at the Yale Law School has it right about Texas law.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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