Texas law restricting drone use upended as unconstitutional

A federal court has ruled a Texas law considerably limiting the use of drones to be unconstitutional, particularly articles restricting images collected by journalists using UAVs in their reporting.

In his ruling, District Judge Robert Pitman of the Western District of Texas in Austin declared elements of the contested law violated constitutional rights, particularly those covered by the First Amendment. Chief among those were strictures the law imposed on journalists using drones in Texas as information- and image-gathering tools in their reporting. The decision issues from a case lodged in 2019 by the National Press Photographers Association (NPPA), which contested the legislation both prior to and after its passage into law.

Pitman faulted the Texas drone law as impinging on users’ freedom to collect and create content as protected by the First Amendment, and of defining reasons for those prohibitions in an overly vague and broad manner. He took particular issue with Chapter 423 of the Texas Government Code, and ordered state law police services to cease enforcing it.

“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,” Chapter 423 reads, drawing Pitman’s criticism that it cast far too wide and ill-defined a net to stand.

“Defendants urge an improperly narrow understanding of the Constitution that is without support in the law,” Pitman said in his ruling. “The process of creating the images finds just as much protection in the First Amendment as the images themselves do… (and that) as a matter of law, use of drones to document the news by journalists is protected expression and… implicates the First Amendment.” 

The case was founded on incidents of two journalists being prevented from using their drones to take photos or videos of news events by authorities citing the law. Those included a San Antonio Express-News photographer who was threatened with arrest for flying his UAV to take shots of an area that had been ravaged by a fatal fire.

Jim Hemphill, who represented the plaintiffs in the case, saluted the ruling.

“Judge Pitman entered an opinion that carefully considers every issue, exhaustively reviews precedent, and holds decisively that drone photography is fully protected by the First Amendment as an integral tool in 21st-Century journalism,” Hemphill said in a report on the decision on the NPPA’s site. “The challenged Texas statutes prohibited legitimate newsgathering that causes no harm, and unconstitutionally drew distinctions that disallowed journalistic drone photography but allowed the exact same drone photography when done for other favored purposes.”