United States: CFWIJ Welcomes Federal Court’s Decision To Allow Journalists Use Drone Photography Overturning Texas State Law

Location: United States, Austin
Date: April 4, 2022

Image: Shutterstock

A federal judge has overturned a stringent Texas state law, which restricted journalists’ ability to use drones, declaring it unconstitutional. With this decision, journalists will not have to fear criminal prosecution for capturing newsworthy events using drone photography. The Coalition For Women In Journalism welcomes the court's decision as an important legal step to ease independent reporting using modern drone technology.

The federal court was ruling on a petition first moved in September 2019 by the Media Freedom & Information Access (MFIA) Clinic together with co-counsel from the National Press Photographers Association (NPPA) and nonprofit advocacy organization Public Justice, challenging the state law. The federal judge overseeing the case, denied the state’s request to dismiss the case in December 2020. 

“This is an important decision for journalists in Texas — and around the country — because drones have become a key tool to gather the news. This decision makes clear that journalists enjoy the same First Amendment protections for drone photography as they do with any other photography,” MFIA told CFWIJ.  

“The Texas law made it a crime for journalists to take pictures with drones in most circumstances while exempting a long list of other people who remained free to do so. The court held that this discrimination against journalists violated their First Amendment rights. The law was also vague about precisely what actions by journalists were prohibited. The court held that this vagueness was another reason the law was unconstitutional, since it led reporters to censor themselves out of fear of violating the law. We are glad that the court vindicated journalists’ First Amendment rights and ensured that reporters can continue using these important tools for newsgathering, ” MFIA added in a written comment to CFWIJ.

US District Judge Robert Pitman based his decision on the grounds that the said law improperly restricted the use of drones based on the content of the images recorded and the use for which the images were taken, according to a press release issued by MFIA on March 31, 2022. The federal judge also found the state law to be unconstitutionally vague and ruled that it violated the First Amendment rights of journalists.

In adopting the Texas Privacy Act regulating the use of drones in 2013, the Texas legislature maintained that the law was needed to protect private property, individual privacy, and the safety of critical infrastructure facilities. 

In 2018, an NPPA member who was using a drone to report an arson fire was told by the police that he faced criminal penalties under the law if he continued to use the drone or published any of the images he had already captured. In other documented cases of the chilling effect of the statute, newspapers have refused assignments to journalists using drones and declined to publish drone photographs out of fear of prosecution.  

According to the press release, among other consequences, the law imposed penalties for using drones on private property “with intent to conduct surveillance” and imposed criminal penalties for flying drones over critical infrastructure facilities, such as oil and gas pipelines, chemical manufacturing plants, and animal feeding operations, or correctional facilities and sports venues. While both provisions had exceptions — the former for research and a number of other listed purposes and the latter for “commercial” purposes — neither exempted news- gathering.

The court also found unconstitutionally vague the undefined terms “surveillance” and “commercial purposes” used in the law to distinguish permitted uses from prohibited ones. The vagueness of the law dissuaded journalists from using drone photography out of fear that their activities might be construed as “surveillance” or “non-commercial,” rendering them subject to both criminal prosecution and civil penalties. As MFIA noted, the “surveillance” provision that applied to images taken on private property effectively outlawed the use of drones over 95% of Texas land.

The Coalition For Women In Journalism welcomes the federal court’s decision. The use of drone photography has become increasingly essential for modern journalists. We congratulate MFIA and the Texas news media industry on this win. We support decisions that enable independent journalism to thrive and innovate without fear of government retaliation. The CFWIJ hopes that this decision will set precedent for future verdicts conducive to the work of the free press.

The Coalition For Women In Journalism is a global organization of support for women journalists. The CFWIJ pioneered mentorship for mid-career women journalists across several countries around the world and is the first organization to focus on the status of free press for women journalists. We thoroughly document cases of any form of abuse against women in any part of the globe. Our system of individuals and organizations brings together the experience and mentorship necessary to help female career journalists navigate the industry. Our goal is to help develop a strong mechanism where women journalists can work safely and thrive.

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