Texas’ drone law challenged by press organizations and photographers

Press organizations and photographers are challenging a Texas‘ drone law, the “Use of Unmanned Aircraft,” claiming that it violates the First Amendment. Last Monday the suit survived a motion, that was filed by state officials to dismiss it.

Texas’ drone law challenged by press organizations and photographers

This Texas’ drone law, the “Use of Unmanned Aircraft,” violates the First Amendment according to Popular Mechanics contributing editor Joe Pappalardo, the Texas Press Association, and the National Press Photographers Association, who have filed a suit to overturn it.

Taking photos of a person or property while conducting ‘surveillance’ is prohibited under the Texas’ drone law, and the law makes it a crime to use the images that were captured during surveillance. Using the images for educational purposes (among others) is allowed, but the use of the photos for newsgathering is not. According to the plaintiffs, the law makes it hard for them to do their jobs and they argue that the law is in violation of the First Amendment.

On Monday, state officials tried to have a federal judge in Austin to dismiss their suit without success.

“It basically creates what we call a chilling effect,” said Mickey Osterreicher, general counsel for the NPPA, in an interview. “Journalists and others wishing to use drones for newsgathering purposes are worried that they may be liable under the law, which is very vague as to what one can and can’t do with a drone in terms of newsgathering,” reports Court House News.

The Texas’ drone law contains surveillance provisions that would impose penalties on anybody who would use a drone to take images of individuals or private property “with the intent to conduct surveillance.” The statute however doesn’t clearly explain what the term ‘surveillance’ means. Using such images could result in a Class B misdemeanor which carries a $10,000 civil penalty.

“This violates the Constitution in part because it’s quite vague,” said Leah Nicholls, a senior attorney at Public Justice who is representing the plaintiffs. “It’s hard to know whether your conduct falls afoul of the statute or not.”

On Monday, U.S. District Judge Robert Pitman agreed and ruled that ‘surveillance,’ as used in the statute, is too vague.

“Plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct — taking photos and video for newsgathering purposes,” the judge wrote. “To the extent that defendants argue that ‘surveillance’ is distinguishable from photography and therefore the surveillance provisions are not prohibiting protected expressive conduct … that argument only highlights the dispute over the vagueness of the term ‘surveillance.’”

However, the claim that the Texas’ drone law’s no-fly zone over prisons and other specified areas is preempted by federal regulations did not survive the State’s Motion. The Federal judge sided with the state and wrote that “federal law has not completely preempted the field regarding [unmanned aerial vehicles] flying over certain buildings and structures.”

The Texas Legislature will reconvene in 2021 and maybe the lawmakers will change the regulations to address some of these concerns.

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