{"id":12596,"date":"2023-11-27T10:49:48","date_gmt":"2023-11-27T16:49:48","guid":{"rendered":"https:\/\/agrilife.org\/texasaglaw\/?p=12596"},"modified":"2023-11-27T10:49:48","modified_gmt":"2023-11-27T16:49:48","slug":"us-court-of-appeals-upholds-texas-drone-privacy-law","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2023\/11\/27\/us-court-of-appeals-upholds-texas-drone-privacy-law\/","title":{"rendered":"US Court of Appeals Upholds Texas Drone Privacy Law"},"content":{"rendered":"

The United States Court of Appeals for the Fifth Circuit recently issued an opinion in\u00a0National Press Photographers Association v. McCraw<\/em>,\u00a0a lawsuit challenging the constitutionality of Texas’ drone privacy law.\u00a0 [Read Opinion here<\/a>.]<\/p>\n

\"\"

Photo by Annie Spratt<\/a> on Unsplash<\/a><\/em><\/p><\/div>\n

Statutory Background<\/strong><\/p>\n

In 2013, the Texas Legislature passed the Texas Privacy Act, Chapter 423 of the Texas Government Code (“Chapter 423”).\u00a0 The purpose of this statute was to regulate the use of drones in Texas airspace.\u00a0 [To read full summary of the law, click here<\/a>.]\u00a0 Essentially, Chapter 423 can be divided into two sections:\u00a0 the Surveillance provisions and the No-Fly provisions.\u00a0 Each of these sections carry the potential of criminal penalties and civil liability.<\/p>\n

Surveillance provisions<\/span><\/p>\n

The Surveillance provisions made it unlawful to use a drone to “capture an image” of a person on private property with an intent to “conduct surveillance” on that person or property.\u00a0 Then, the statute listed a litany of statutory exemptions to the Surveillance provisions.\u00a0 These include law enforcement and military operations, academic purposes, and real estate agent uses, for example.\u00a0 Note, there is no such exemption for uses of drones in this manner by the press.<\/p>\n

No-Fly provisions<\/span><\/p>\n

The No-Fly provisions made it illegal to fly a drone above certain facilities.\u00a0 These included “critical infrastructure facilities,” like airports, refineries, large sports venues, and confined animal feeding operations.\u00a0 A person violates this law if they intentionally or knowingly operate a drone over a critical infrastructure facility at less than 400′ above the ground, allow a drone to make contact with a critical infrastructure\u00a0 facility (including a person or object on the premises), or allow a drone to come close enough to a critical infrastructure facility to interfere with the operations of or cause a disturbance to the facility.\u00a0 Again, there were a number of exceptions to the No-Fly provisions as well, including one that allows an operator to violate the provisions if it is done “for a commercial purpose” so long as the operator complies with all Federal Aviation Administration (FAA) regulations.\u00a0 And, again, there was no similar exception for the press.<\/p>\n

Lawsuit<\/strong><\/p>\n

Three Plaintiffs–one drone-owning journalist and two media-related organizations–filed suit against a number of state officials claiming Chapter 423 is unconstitutional. [Read blog post on lawsuit here<\/a>.]\u00a0 Specifically, they filed a facial constitutional challenge to the statute.\u00a0 This means they challenged Chapter 423’s constitutionality on its face, rather than based on its application to a specific set of facts.\u00a0 They asserted that the Surveillance provisions violate the First Amendment and the Due Process Clause and that the No-Fly provisions violate the First Amendment, Due Process Clause, and federal preemption principles.\u00a0 In summary, they claimed that Chapter 423 infringes on their constitutional rights to film and gather news, that the statutory language is so vague it violates Due Process, and that Texas has no authority to pass such laws because the federal government has expressly preempted such state laws.<\/p>\n

The United States District Court for the Western District of Texas found in favor of the Plaintiffs.\u00a0 [Read blog post on that decision here<\/a>.]\u00a0 The court dismissed\u00a0 the federal preemption claim but ruled in favor of the Plaintiffs on all of their remaining theories.\u00a0 The court entered an injunction prohibiting Texas from enforcing Chapter 423.<\/p>\n

Both sides appealed.\u00a0 The Defendants argued the lower court was wrong on the merits, but also challenge the Plaintiffs’ standing and claim the state should have sovereign immunity in this case. The Plaintiffs argued the court should have found in favor of their preemption claim as well.<\/p>\n

Appellate Court Opinion<\/strong><\/p>\n

On October 23, 2023, the United States Court of Appeals for the Fifth Circuit issued its opinion reversing the lower court and finding in favor of the State of Texas.\u00a0 [Read Opinion here<\/a>.]\u00a0 The court’s opinion can be divided into four sections.<\/p>\n

I. Standing<\/span><\/em><\/p>\n

The State of Texas argued that Plaintiffs lacked standing to bring this case.\u00a0 For the Plaintiff organizations, the standing requirement at issue was whether the organizations’ members would have standing to sue in their own right.\u00a0 For the individual Plaintiff, the questions at issue were whether he suffered an injury in fact and whether that injury is fairly traceable to the challenged action of the Defendants. The Plaintiffs bear the burden of proving standing.<\/p>\n

Injury in Fact<\/span><\/p>\n

An injury sufficient to satisfy the standing requirements must be concrete and particularized and actual or imminent.\u00a0 Such injuries cannot be hypothetical.\u00a0 The allegation of a future injury may be sufficient if the threatened injury is impending, or there is a substantial risk the harm may occur.<\/p>\n

The State argued the Plaintiffs have no injury as no one has ever been prosecuted or arrested for violating Chapter 423, including the Plaintiffs.\u00a0 The Plaintiffs claimed the threat of enforcement is the injury. They claimed that they have ceased using their drones in news gathering activities due to the penalties they could face for doing so under Chapter 423.<\/p>\n

Due Process Claims<\/em><\/p>\n

First, the court looked at the issue of standing to bring a Due Process claim.\u00a0 The court sided with the Defendants, dismissing the Due Process claims.\u00a0 The court noted that none of the Plaintiffs or their members have ever been arrested or prosecuted for violating Section 423.\u00a0 Thus, the issue of whether Chapter 423’s provisions are unconstitutionally vague is “a mere hypothetical dispute lacking the concreteness and imminence required by Article III.” The court held that without “an imminent or even credible threat of prosecution under Chapter 423,” the Plaintiffs lack standing to preemptively challenge the statute under the Due Process Clause.\u00a0 Thus, the court vacated the trial court’s judgment on the due process claims.<\/p>\n

First Amendment Claims<\/em><\/p>\n

Next, the court turned to standing to bring the First Amendment claims.\u00a0 The standard for these claims is different because the law recognizes more “relaxed” standing rules in First Amendment cases by allowing prospective relief for citizens whose speech might be chilled by fear of sanction.\u00a0 In order to satisfy the chilled speech injury required for standing under the First Amendment, a plaintiff must show that they had an intent to engage in a course of conduct arguably affected with a constitutional interest, the intended conduct is arguably proscribed by the law in question, and the threat of future enforcement of the law is substantial.<\/p>\n

Here, the Plaintiffs offered evidence that some Plaintiffs stopped using their drones in newsgathering activities due to potential Chapter 423 penalties.\u00a0 Another noted that he still uses his drone generally, but not if law enforcement is present because of Chapter 423.\u00a0 Plaintiffs testified that they had lost the opportunity for profit due to their inability to use drones per Chapter 423.\u00a0 \u00a0Certain newspapers enacted policies prohibiting photographers from gathering footage using drones.\u00a0 This policy was reversed after the trial court issued an injunction prohibiting enforcement of Chapter 423.<\/p>\n

The State responded that they have never enforced Chapter 423, so Plaintiffs offered a merely subjective chilling concern, not an objective concern.<\/p>\n

The court found the Plaintiffs’ injuries–the chilling effect of Chapter 423 and the monetary losses sufficient to show the required injury in fact. The court held that the fact that the statute has not yet been enforced does not preclude standing.\u00a0 This is particularly true, the court noted, “when, as here, the State has not disavowed any intention of invoking the law against Plaintiffs.”<\/p>\n

Traceability<\/span><\/p>\n

Even if the Plaintiffs have suffered an injury, they must also show that their injury is fairly traceable to the Defendants’ conduct.\u00a0 Here, the Plaintiffs must show the injuries they suffered were caused by the State of Texas Defendants. The court found traceability with regard to DPS and the State Highway Patrol Defendants as they are tasked with enforcing laws protecting public safety. The court also found traceability with regard to a District Attorney Defendant, as he is charged with prosecuting individuals who violate criminal laws.<\/p>\n

In light of this, the court found the Plaintiffs may bring their claims challenging the criminal penalties of Chapter 423 against these Defendants.\u00a0 They may not, however, sue these Defendants to enjoin the civil penalties because they do not enforce such provisions.\u00a0 Only private individuals harmed by the civil provisions may enforce those provisions.\u00a0 Thus, the court lacked jurisdiction to order the Defendants not to enforce the civil portion (Chapter 423.006) of the statute and that portion of the injunction is vacated.<\/p>\n

Sovereign<\/u><\/i>\u00a0Immunity<\/em><\/span><\/p>\n

The court turned next to the issue of sovereign immunity.\u00a0 Generally, States are immune from lawsuits under the doctrine of sovereign immunity.\u00a0 This doctrine also prohibits lawsuits against state officials or agencies that are effectively lawsuits against the State.\u00a0 \u00a0There is, however, an exception to this prohibition from suit called Ex Parte Young\u00a0<\/em>which allows a plaintiff to sue a state officer in his or her official capacity for an injunction to stop ongoing violations of federal law.\u00a0 In order for this type of lawsuit to be allowed, the state official must have “some connection with the enforcement of the challenged act.” The court has developed a three part test to guide the analysis of whether a sufficient connection exists: (1) official must have more than a general duty to see that the laws of the state are implemented; (2) official must have the particular duty to enforce the statue in question and demonstrated willingness to exercise that duty; and (3) enforcement means compulsion of constraint.<\/p>\n

The court found the first and third elements easily met.\u00a0 \u00a0The second–a willingness to exercise such duty–is missing for two of the named Defendants.\u00a0 The court noted that DPS or the State Highway Patrol never issued a warning or citation for violation of Chapter 423 in the decade it has been the law.\u00a0 Thus, there is zero evidence that either the Director of DPS or the Chief of the Highway Patrol have shown a willingness to exercise their duty, and they are both entitled to sovereign immunity.<\/p>\n

The same is not true for the third Defendant, the Hays County District Attorney because he is a county<\/em> official, not a\u00a0state\u00a0<\/em>official.\u00a0 The court previously held that District Attorneys are not protected by sovereign immunity and held the same here.<\/p>\n

Merits of the Case<\/u><\/i><\/p>\n

Next (finally), the court reached the merits of the case, addressing the Plaintiffs’ First Amendment claims first and then their preemption claim.<\/p>\n

First Amendment<\/span><\/p>\n

The court addressed the two sections of the statute separately.<\/p>\n

No-Fly provisions<\/em><\/p>\n

The court found in favor of the Defendants on this claim.\u00a0 The Plaintiffs’ claims fail because only “inherently expressive conduct” receives First Amendment protections.\u00a0 The operation of a drone is not inherently expressive.\u00a0 Neither is it expressive to fly a drone over a sports venue or critical infrastructure facility. “Nothing in the No-Fly provisions have anything to do with speech or expression.\u00a0 They are flight restrictions, not speech restrictions.”<\/p>\n

The court rejected the Plaintiffs’ argument that drones are often used for photography, which is expressive conduct. The court quoted a prior US Supreme Court decision holding that “the right to speak and publish does not carry with it the unrestrained right to gather information.”<\/p>\n

Because the No-Fly provisions have nothing to do with speech or expressive activity, they do not implicate the First Amendment.\u00a0 The district court’s opinion is reversed.<\/p>\n

Surveillance provisions<\/em><\/p>\n

The court noted that, unlike the No-Fly provisions that are mere flight restrictions, the Surveillance provisions make capturing certain images unlawful.\u00a0 Restrictions on filming have been found to implicate the First Amendment.\u00a0 The extent of the constitutional protections for the right to film is an ongoing debate.\u00a0 The court sited several cases, including a recent US Court of Appeals for the Fourth Circuit decision finding First Amendment rights for animal rights activists to infiltrate businesses and film them and a US Court of Appeals for the Ninth Circuit decision finding a law prohibiting secret recording of conversations violates the First Amendment. The leading Fifth Circuit case on this issue is Turner v. Lieutenant Driver<\/em>, where the court held that the First Amendment protects the right to record the police doing their public duties in public places. The court noted, however, this right is not unlimited.\u00a0 Thus, the court here held that the right to film is subject to some level of First Amendment scrutiny.<\/p>\n

How much scrutiny should apply was the next question.\u00a0 The court held that intermediate scrutiny was the proper level for this case.\u00a0 Under intermediate scrutiny, a content-neutral law will be upheld if it furthers an important governmental interest that is unrelated to the suppression of free expression and if the incidental restriction on First Amendment freedoms is no greater than necessary to further that governmental interest.<\/p>\n

The court held that the State has a substantial interest in protecting the privacy rights of its citizens.\u00a0 The law is limited to only prohibit certain filming activities–those at a height above 8 feet on private property. This distinction between public and private places is critical to the court’s decision.\u00a0 Thus, the law survives intermediate scrutiny, the lower court is reversed, and the law is upheld.<\/p>\n

Preemption<\/span><\/p>\n

Plaintiffs claimed the trial court erred in dismissing their preemption claim that the No-Fly provisions are preempted by federal regulation of airspace.\u00a0 The court found this claim to fail on the merits.\u00a0 Field preemption occurs when Congress has essentially determined a certain area must be regulated by federal law, thereby prohibiting State regulation.\u00a0 Even when there is no express preemption, it may be inferred from a “scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, or where an Act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”<\/p>\n

Here, the court held the Plaintiffs failed to show that Congress or the FAA intended to occupy the entire field of drone regulation.\u00a0 Although there are some federal regulations, there is no evidence federal law has\u00a0completely<\/em> preempted the field regarding drones.\u00a0 In fact, the FAA expressly declined to do so stating that it would not expressly preempt state law and noting that State law offers legal protections related to privacy and drone usage.<\/p>\n

Conclusion<\/em><\/span><\/p>\n

The court’s conclusion began with the following language, ” Plaintiffs picked an uphill battle by styling this litigation as a facial, pre-enforcement challenge.”\u00a0 Importantly, the court noted this decision does not foreclose all\u00a0<\/em>First Amendment and Due Process challenges to Chapter 423.\u00a0 It is possible that an as-applied challenge under certain facts may be successfully pursued.\u00a0 But on a facial challenge, the Plaintiffs’ claims fail.<\/p>\n

Thus, the court affirmed the dismissal of Plaintiffs’ preemption claims and vacated the remaining portions of the district court order.<\/p>\n

Potential Reconsideration\/Appeal<\/u><\/em><\/span><\/p>\n

The Plaintiffs have filed a motion for en banc<\/em> hearing.\u00a0 This means they want the all of the US Court of Appeals for the Fifth Circuit judges to hear the case, rather than just the three-judge panel that issued this opinion.\u00a0 If that is denied, the Plaintiffs could also file a Petition for Certiorari with the United States Supreme Court.\u00a0 In various news articles, they have said they are weighing their options.<\/p>\n

Key Takeaways<\/strong><\/p>\n

This is an important decision with regard to drone usage in Texas.\u00a0 Although the focus of this lawsuit is on the First Amendment and the Constitutional rights of those seeking to use drones, do not forget that the statute offers privacy protections for landowners as well.\u00a0 Rural landowners and agricultural producers could find themselves on either side of the issue and many producers and agribusinesses use drones in their operations, but many others have complained about drone use on private property. It is an area of the law where technology got out front and the law has been forced to play catch up for many years.<\/p>\n","protected":false},"excerpt":{"rendered":"

The United States Court of Appeals for the Fifth Circuit recently issued an opinion in\u00a0National Press Photographers Association v. McCraw,\u00a0a lawsuit challenging the constitutionality of Texas’ drone privacy law.\u00a0 [Read Opinion here.] Statutory Background In 2013, the Texas Legislature passed the Texas Privacy Act, Chapter 423 of the Texas Government Code (“Chapter 423”).\u00a0 The purpose of this statute was to regulate the use of drones in Texas airspace.\u00a0 [To read full summary of the law, click here.]\u00a0 Essentially, Chapter 423 can be divided into two sections:\u00a0 the Surveillance… Read More →<\/a><\/span><\/p>\n","protected":false},"author":908,"featured_media":11144,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[46],"tags":[],"class_list":["post-12596","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-drones"],"acf":[],"yoast_head":"\nUS Court of Appeals Upholds Texas Drone Privacy Law - Texas Agriculture Law<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/agrilife.org\/texasaglaw\/2023\/11\/27\/us-court-of-appeals-upholds-texas-drone-privacy-law\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"US Court of Appeals Upholds Texas Drone Privacy Law - Texas Agriculture Law\" \/>\n<meta property=\"og:description\" content=\"The United States Court of Appeals for the Fifth Circuit recently issued an opinion in\u00a0National Press Photographers Association v. McCraw,\u00a0a lawsuit challenging the constitutionality of Texas’ drone privacy law.\u00a0 [Read Opinion here.] Statutory Background In 2013, the Texas Legislature passed the Texas Privacy Act, Chapter 423 of the Texas Government Code (“Chapter 423”).\u00a0 The purpose of this statute was to regulate the use of drones in Texas airspace.\u00a0 [To read full summary of the law, click here.]\u00a0 Essentially, Chapter 423 can be divided into two sections:\u00a0 the Surveillance... 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Texas Agriculture Law","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/agrilife.org\/texasaglaw\/2023\/11\/27\/us-court-of-appeals-upholds-texas-drone-privacy-law\/","og_locale":"en_US","og_type":"article","og_title":"US Court of Appeals Upholds Texas Drone Privacy Law - Texas Agriculture Law","og_description":"The United States Court of Appeals for the Fifth Circuit recently issued an opinion in\u00a0National Press Photographers Association v. McCraw,\u00a0a lawsuit challenging the constitutionality of Texas’ drone privacy law.\u00a0 [Read Opinion here.] Statutory Background In 2013, the Texas Legislature passed the Texas Privacy Act, Chapter 423 of the Texas Government Code (“Chapter 423”).\u00a0 The purpose of this statute was to regulate the use of drones in Texas airspace.\u00a0 [To read full summary of the law, click here.]\u00a0 Essentially, Chapter 423 can be divided into two sections:\u00a0 the Surveillance... 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