Nat'l Press Photographers Ass'n v. McCraw

90 F.4th 770

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; Texas Press Association;Joseph Pappalardo, Plaintiffs—Appellees/Cross-Appellants, v. Steven MCCRAW, in his official capacity as Director ofthe Texas Department of Public Safety; Dwight Mathis,in his official capacity as Chief of the Texas Highway Patrol;Kelly Higgins, in his official capacity as District Attorney ofHays County, Texas, Defendants—Appellants/Cross-Appellees.

No. 22-50337

United States Court of Appeals, Fifth Circuit

FILED January 10, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:19-CV-946, Robert L. Pitman, U.S. District Judge

James A. Hemphill, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, Alicia W. Calzada, San Antonio, TX, Leah Marie Nicholls, Public Justice, P.C., Washington, DC, Mickey H. Osterreicher, General Counsel, Finnerty, Osterreicher & Abdulla, Buffalo, NY, David A. Schulz, Media Freedom & Information Access Clinic, New York, NY, for Plaintiffs - Appellees/Cross-Appellants.

Lanora Christine Pettit (argued), Coy Allen Westbrook, Office of the Texas Attorney General, Solicitor General Division, Austin, TX, Heather Lee Dyer, Christopher D. Hilton, Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants - Appellants/Cross-Appellees Steven McCraw, Dwight Mathis.

Michael A. Shaunessy, Ian M. Davis (argued), McGinnis Lochridge, L.L.P., Austin, TX, Eric Alexander Johnston, Esq., Michael Best & Friedrich, L.L.P., Austin, TX, for Defendant - Appellant/Cross-Appellee Kelly Higgins.

Michael Lovins, Lovins Trosclair, P.L.L.C., Austin, TX, for Amicus Curiae East Texas Ranch, L.P.

Joshua Scott Turner, Wiley Rein, L.L.P., Washington, DC, for Amicus Curiae Association for Uncrewed Vehicle Systems International.

Eric J. R. Nichols, Marshall Ayres Bowen, Cory Liu, Butler Snow, L.L.P., Austin, TX, for Amicus Curiae Texas District and County Attorneys.

Thomas Byrne Sullivan, Ballard Spahr, L.L.P., New York, NY, for Amici Curiae Advance Publications, Incorporated, Associated Press, Cable News Network, Incorporated, E.W. Scripps Company, Fox Television Stations, L.L.C., Gray Media Group, Incorporated, Gannett Company, Incorporated, New York Times Company, Radio Television Digital News Association, News/Media Alliance, Sinclair Incorporated, TEGNA, Incorporated, WP Company, L.L.C.

Bruce D. Brown, Reporters Committee for Freedom of the Press, Washington, DC, for Amici Curiae 27 News Media Organizations, Reporters Committee for Freedom of the Press, Texas Association of Broadcasters.

Before Clement, Elrod, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

Our prior panel opinion, National Press Photographers Association v. McCraw, 84 F.4th 632 (5th Cir. 2023), is WITHDRAWN and the following opinion is SUBSTITUTED therefor:

Chapter 423 of the Texas Government Code governs the operation of unmanned aerial vehicles—drones—in Texas airspace. In this case, the plaintiffs claim a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent. They also assert a constitutional right to fly drones at low altitudes over critical infrastructure facilities like prisons and large sports venues.

We disagree. Though we do not foreclose any as-applied constitutional defenses to any hypothetical future prosecutions under the drone laws, we hold that these facial challenges fail. Accordingly, we REVERSE and REMAND with instructions to enter judgment in the defendants' favor on the constitutional claims. We also reject the plaintiffs' cross-appeal claiming that federal aviation law preempts state drone regulation. Quite the contrary, federal law expressly contemplates concurrent non-federal regulation of drones, especially where privacy and critical infrastructure are concerned. On this issue, we AFFIRM the district court's dismissal of the plaintiffs' preemption claims.

I

A

Roughly a decade ago, the Texas Legislature enacted Chapter 423 as part of its efforts to regulate the use of drones in Texas airspace.¹ Two sets of Chapter 423's provisions are at issue in this lawsuit:

First, we have what the parties have nicknamed the "Surveillance" provisions. These provisions make it unlawful to use a drone to "capture an image" of someone or private property with an intent to surveil the subject of the image:

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.²

Depending on how you count them, there are at least twenty-one statutory exemptions to the Surveillance Provisions.³ For instance, law enforcement and the military are allowed to conduct aerial surveillance using drones.⁴ So can professors and students, if they do it for an "academic purpose."⁵ It's also fine to use a drone to capture images from under eight feet—roughly the height of someone holding a camera above his or her head.⁶ Importantly—it is lawful to use a drone to capture images of public property or persons on public property,⁷ and one can always take drone images with the consent of the subject.⁸ What is not among the twenty-one exceptions, however, is a specific exemption for the press.

Second, we have what the parties have dubbed the "No-Fly Provisions." The No-Fly provisions make it illegal to fly a drone above sensitive sites like critical infrastructure facilities, prisons, and large sports venues:

A person commits an offense if the person intentionally or knowingly:

(1) operates an unmanned aircraft over a critical infrastructure facility and the unmanned aircraft is not higher than 400 feet above ground level;

(2) allows an unmanned aircraft to make contact with a critical infrastructure facility, including any person or object on the premises of or within the facility; or

(3) allows an unmanned aircraft to come within a distance of a critical infrastructure facility that is close enough to interfere with the operations of or cause a disturbance to the facility.⁹

Critical infrastructure facilities include airports, petroleum refineries, power generators, and military installations, so long as they are enclosed by a fence or barrier, or otherwise indicate that entry is forbidden.¹⁰ There is a nearly identical No-Fly provision barring flights directly above correctional facilities and detention centers,¹¹ and one that applies to large sports venues:

A person commits an offense if the person intentionally or knowingly operates an unmanned aircraft over a sports venue and the unmanned aircraft is not higher than 400 feet above ground level.¹²

Just like the Surveillance provisions, the No-Fly provisions contain several exemptions. Most relevant here is one that allows a drone operator to violate the No-Fly provisions "for a commercial purpose" so long as the operator complies with the applicable Federal Aviation Administration rules and authorizations.¹³ Again, though: there is no specific exemption for the press.

Violating the Surveillance or the No-Fly provisions is a criminal offense under Texas law,¹⁴ and it also subjects the violator to the possibility of civil liability.¹⁵

B

The plaintiffs in this case are one drone-owning journalist and two media-related organizations (Plaintiffs).

Joseph Pappalardo is a self-employed journalist. He owns a small aerial drone and is qualified to operate the drone in the national airspace. He is "concerned that using a [drone] for journalistic purposes would put [him] at risk of criminal penalties and subject [him] to liability in a civil lawsuit" in Texas. In 2017, he was informed by one of his "corporate bosses" at the time that, should he take images in violation of Chapter 423, the company would not pay for a legal defense in any resulting court proceedings. After that conversation, he has refrained from using a drone for image capturing in Texas "due to [his] concern about possibly violating Chapter 423." As a result, he has missed out on opportunities to take aerial photographs to include in his reporting, including stories on Hurricane Harvey, house fires, storm damage, removal of homeless encampments, and illegal poaching in urban areas. He believes that Chapter 423 prevents him from being able to do "complete reporting that journalists in other states are able to do." "As a freelancer, being able to provide aerial imagery can be the difference between selling a pitch or being denied."

National Press Photographers Association (NPPA) is a national association that represents the interests of visual journalists, including news photographers in Texas. According to NPPA, drones provide its members with a cheap and safe alternative to renting a helicopter to obtain aerial images. Two NPPA members, both photojournalists, are especially relevant to this appeal.

The first is Guillermo Calzada. In July 2018, he flew his drone near the site of an apartment fire in San Marcos, Texas, to capture images for his employer, the San Antonio Express-News. An unnamed federal agent at the scene approached him and told him that he was interfering with a federal investigation. The agent then called the San Marcos police. An unnamed police officer arrived and told Calzada that he had violated state law by taking pictures with his drone and that, if he published them, he would be violating the law again. The officer also told Calzada that she wouldn't cite him for the incident.

The second is Brandon Wade. He is a freelancer who, though qualified to fly a drone, does not use one for journalism due to the risk of enforcement. He believes the threat of enforcement is costing him "thousands of dollars" because one of his clients, The Dallas Morning News, has not given him any drone-photography assignments. In 2018, another client, the Fort Worth Star-Telegram, offered Wade an assignment to document the construction of a new...