The U.S. Court of Appeals for the Fifth Circuit reversed a district court’s 2022 ruling on the constitutionality of Texas Chapter 423 law (i.e., the drone law) which restricts the actions of drones. Nat’l Press Photographers Ass’n v. McCraw, No. 22-50337 (Oct. 23, 2023) The law reads:
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.
The ruling concluded that the law is not unconstitutional on its face, and that this decision “does not foreclose all First Amendment and due process challenges” and that a future challenge “may persuasively show that a particular enforcement of Chapter 423 runs afoul of free speech or fairness principles.”
The lawsuit was a pre-enforcement challenge to this Texas state law by the National Press Photographers Association (NPPA). While specific exemptions for certain government operations (e.g., land surveying, criminal investigations, educational research) were made, the law did not clarify or address whether the press could use drones. In its argument, the NPPA provided examples of drone use by the media: the capturing of aerial footage of a fatal fire or using a drone to track the construction of a publicly funded project. These examples, argued the NPPA, are not invasions of privacy, yet these actions would fall under the statute without a specific exemption for the media. Since the decision did not clarify whether the prohibition applies to media, this likely means that the statute could face further challenge if criminal penalties are sought against a reporter in the future. For now, journalists in Texas may need to weigh the risks related to the use of drones for reporting purposes, since the law imposes a criminal misdemeanor infraction on violators.