Case Law Update: National Press Photographers Association v. McCraw UPDATED

After determining that the use of drones for newsgathering photography was subject to First Amendment protection, the court discussed what level of scrutiny should apply to its analysis. A law is subject to the strictest scrutiny if it is content-based, speaker-based, and/or purpose-based. Under the Surveillance Provisions, the content of the images (public vs. private) determined the penalties. Because the provisions included a list of people allowed to use drones, to the exclusion of journalists, they were also speaker-based. The No-Fly Provisions permitted the usage of drones over critical infrastructure for commercial purposes, but not for news, making the restriction purpose-based. Accordingly, the statutes were subject to strict scrutiny.

Strict scrutiny analysis requires that the statute be “actually necessary to achieve a compelling interest” and “narrowly tailored to achieve that interest.” To be actually necessary, there must be no alternative means to reach your stated goal. Defendants claimed the restrictions protected private property, privacy, and safety of infrastructure, but did not prove how, nor that there are no alternative means of doing so – in fact, the court pointed out, multiple other statutes (trespass, voyeurism, etc.) existed to protect these interests, and it was already a felony criminal offense to damage critical infrastructure. The “speculation of harm” was insufficient. The court also found that the statutes were not sufficiently narrowly tailored, but in fact “unnecessarily circumscribed a protected expression.” Drones could be used in photography for commercial purposes, but it was not shown how this was different, or safer the than usage of drones for newsgathering.

For the preceding reasons, the court held that the applicable portions of Section 423 were unconstitutional.

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