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.

Recent News

Inside Tour of RR&A’s New Website

Inside Tour of RR&A’s New Website written by Rachel Lamphier As RR&A grew by leaps

Four Misconceptions About Legal Services

Four Misconceptions About Legal Services And Why They Are Wrong written by Rachel Reese Legal

What Can RR&A Do for You?

What Can RR&A Do For You? written by Jennifer Martin The number one question we

The Triangle Model Explained

The Triangle Model Explained written by Rachel Reese If you’ve talked to anyone at RR&A

Did you Know the Interesting Things RR&A Does?

Did You Know the Interesting Things RR&A Does? written by Andrew Clinton At RR&A, we

Get To Know the RR&A Team

Get to Know the RR&A Team written by Rachel Lamphier The RR&A team has years


View All News