Nat'l Press Photographers Ass'n v. McCraw

594 F.Supp.3d 789

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, Texas Press Association, and Joseph Pappalardo, Plaintiffs,

v.Steven MCCRAW, in his official capacity as Director of Texas Department of Public Safety; Dwight Mathis, in his official capacity as Chief of the Texas Highway Patrol; and Wes Mau, in his official capacity as District Attorney of Hays County, Texas, Defendants.

1:19-CV-946-RP

United States District Court, W.D. Texas, Austin Division.

Signed March 28, 2022

David A. Schulz, Francesca L. Procaccini, Jennifer Pinsof, Media Freedom & Information Access Clinic, Yale Law School, New Haven, CT, Leah M. Nicholls, Public Justice, P.C., Washington, DC, Leslie A. Brueckner, Public Justice, P.C., Oakland, CA, Mickey H. Osterreicher, Pro Hac Vice, Finnerty Osterreicher & Abdulla, Buffalo, NY, Alicia Wagner Calzada, San Antonio, TX, James A. Hemphill, Graves, Dougherty, Hearon & Moody, PC, Austin, TX, for Plaintiff National Press Photographers Association.

David A. Schulz, Francesca L. Procaccini, Jennifer Pinsof, Media Freedom & Information Access Clinic, Yale Law School, New Haven, CT, Leah M. Nicholls, Public Justice, P.C., Washington, DC, Leslie A. Brueckner, Public Justice, P.C., Oakland, CA, Mickey H. Osterreicher, Pro Hac Vice, Finnerty Osterreicher & Abdulla, Buffalo, NY, James A. Hemphill, Graves, Dougherty, Hearon & Moody, PC, Austin, TX, for Plaintiffs Texas Press Association, Joseph Pappalardo.

Christopher D. Hilton, Office of the Attorney General of Texas, Austin, TX, for Defendants Steven McCraw, Ron Joy. +++++ Eric Alexander Johnston, Michael A. Shaunessy, McGinnis Lochridge LLP, Ethan Jacob Ranis, Almanza, Blackburn, Dickie & Mitchell, Austin, TX, for Defendant Wes Mau.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court are cross-motions for summary judgment filed by Plaintiffs National Press Photographers Association ("NPPA"), Texas Press Association ("TPA"), and Joseph Pappalardo's ("Pappalardo") (collectively, "Plaintiffs"), (Pls.’ Mot., Dkt. 63); and Defendants Steven McCraw ("McCraw"), Dwight Mathis ("Mathis"),¹ and Wes Mau's ("Mau") (collectively, "Defendants") (Defs.’ Mot., Dkt. 65); and the parties’ respective responsive briefing. Also before the Court are East Texas Ranch's ("Movant") Motion to Intervene, (Mot. Intervene, Dkt. 60); and Amici Texas Association of Broadcasters ("TAB") and Reporters Committee for Freedom of the Press's ("RCFP") Motion for Leave to File Amicus Brief, (Mot. Leave, Dkt. 71). Having considered the parties’ arguments, the evidence, and the relevant law, the Court will grant Plaintiffs’ motion for summary judgment, deny Defendants’ motion for summary judgment, deny the motion to intervene, and grant the motion for leave to file an amicus brief.

I. BACKGROUND

This case concerns journalists’ right under the First Amendment to operate unmanned aerial vehicles ("UAVs"), otherwise known as drones, and publish the resulting images. Plaintiffs challenge the constitutionality of two sets of provisions of Chapter 423 of the Texas Government Code ("Chapter 423"), passed in 2013 and amended in 2015. (Pls.’ Mot. Summ. J., Dkt. 63, at 15). Plaintiffs allege that the civil and criminal penalties within the Chapter 423 provisions restrict the First Amendment right to newsgathering and speech and chill Plaintiffs and their members from using UAVs for certain newsgathering activities. (Id. ).

Texas Government Code Sections 423.002, 423.003, 423.004, and 423.006 (together "Surveillance Provisions") impose civil and criminal penalties on UAV image creation. Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use "an unmanned aircraft to capture an image of an individual or privately owned real property ... with the intent to conduct surveillance on the individual or property captured in the image." TEX. GOV'T CODE § 423.003(a). Under Section 423.006, a landowner or tenant may bring a civil action against a person who violates Section 423.003 or 423.004. TEX. GOV'T CODE § 423.006(a). Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. see TEX. GOV'T CODE § 423.002. Exemptions include "professional or scholarly research and development or ... on behalf of an institution of higher education." TEX. GOV'T CODE § 423.002(a)(1). Plaintiffs argue that the Surveillance Provisions are unconstitutionally content- and speaker-based because the exemptions in Section 423.002 prohibit or allow the use of UAVs based on the purpose for which the image was captured, the identity of the person capturing the image, or the content of the image. (Pls.’ Mot. Summ. J., Dkt. 63, at 10). Plaintiffs also argue that the Surveillance Provisions are unconstitutionally vague and overbroad because the term "surveillance" is not defined. (Id. at 11).

Texas Government Code Sections 423.0045 and 423.0046 (together "No-Fly Provisions") impose criminal penalties by making it unlawful to fly UAVs over a "Correctional Facility, Detention Facility, or Critical Infrastructure Facility" or "Sports Venue" at less than 400 feet. TEX. GOV'T CODE § 423.0045, § 423.0046. Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. TEX. GOV'T CODE § 423.0045(a). In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. Id. The 2017 amendments also defined a "sports venue" to include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is "primarily used" for one or more professional or amateur sport or athletics events. TEX. GOV'T CODE §§ 423.0045 –046; 2017 Tex. Sess. Law Serv. Ch. 1010 (H.B. 1424) (Vernon's). Plaintiffs contend that when combined with Federal Aviation Administration ("FAA") regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. (Pls.’ Mot. Summ. J., Dkt. 63, at 16); see 81 Fed. Reg. 42064, 4206 (June 28, 2016) ; 14 C.F.R. § 107.1(a).

The No-Fly Provisions exempt certain UAV users, including those with a "commercial purpose." TEX. GOV'T CODE §§ 423.0045(c), 423.0046(c). Plaintiffs argue that allowing UAVs to be used for commercial purposes but not newsgathering purposes constitutes content-based discrimination in violation of the First Amendment. (Pls.’ Mot. Summ. J., Dkt. 63, at 11). Plaintiffs allege the No-Fly Provisions are unconstitutionally vague and overbroad because "commercial purpose" is not defined and is understood to exclude newsgathering. (Id. at 17). Plaintiffs claim this leaves visual journalists unable to determine if they are permitted to use UAVs under the No-Fly Provisions.

Plaintiffs are one individual journalist and two media organizations. Pappalardo is a Texas reporter who owns a drone and was previously certified to operate a UAV in the national airspace by the FAA. (Pappalardo Decl., Dkt. 63, at 150). Pappalardo states that the Chapter 423 provisions have chilled his newsgathering because he is concerned about liability under its provisions. (Id. at 153). Because of the law, he has foregone opportunities to report on "events related to Hurricane Harvey, the removal of homeless encampments, the way gridlock hampers emergency responders, and illegal poaching in urban areas." (Mot. Summ. J., Dkt. 63, at 17; Pappalardo Decl., Pls.’ Ex. 5, ¶ 14). He fears that "using a [drone] for journalistic purposes would put [him] at risk of criminal penalties and subject [him] to liability in a civil lawsuit." (Pappalardo Decl., Dkt. 63, at 150).

NPPA is a national organization that represent the interests of visual journalists, including within Texas. (Ramsess Decl., Dkt. 63, at 157). NPPA members include photographers from print, television, and electronic media, including approximately 300 members in Texas. ( Id. ). NPPA promotes the role of visual journalism as a public service and advocates for the work of its visual journalist members. (Id. at 159). Plaintiffs allege that NPPA members regularly use UAVs for newsgathering. (Id. at 157). Plaintiffs argue that NPPA members’ newsgathering is chilled by the Chapter 423 provisions. (Pls.’ Mot. Summ. J., Dkt. 163, at 19).

NPPA advises its members on legal issues that face them in their work as journalists. (Id. at 18). Since the passage of the Chapter 423 provisions, NPPA has advised its members about the provisions, including researching the law and meeting with lawmakers and communicating with members about compliance. ( Id. ). Plaintiffs contend that NPPA has diverted resources from NPPA's core activities as a result of the Chapter 423 provisions. ( Id. ). TPA is one of the oldest and largest newspaper trade organizations in the country with more than 400 member newspapers across the state of Texas. (Baggett Decl., Dkt. 63, at 122). Plaintiffs allege that Chapter 423 has led some its members "to avoid the use of drone photography" in their publications. ( Id. ).

In addition to the impacts on NPPA and TPA as organizations, individual members have also felt the effects of Chapter 423. NPPA member, employee of TPA member San Antonio Express-News , and video journalist Guillermo Calzada ("Calzada") has an FAA Part 107 Remote Pilot Certificate, which qualifies him to operate UAVs in the national airspace, and he owns a registered drone. (Calzada Decl., Dkt. 63, at 131; Calzada Certificate of Authorization, Dkt. 63, at 145). On July 24, 2018, Calzada used his UAV to report on an arson fire at an apartment complex in San Marcos. (Calzada Decl., Dkt. 63, at 131–32). Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives stopped Calzada and called San Marcos police. (Id. at 132). A San Marcos police...