Case Law Update: National Press Photographers Association v. McCraw

Sections 423.002-.004 and 423.006 of the Texas Government Code (the “Surveillance Provisions”) impose both civil and criminal penalties for using drones to capture images of individuals and private property “for use in surveillance.” Sections 423.0045 and 423.0046 of the Texas Government Code (the “No-Fly Provisions”) impose criminal penalties for flying drones over critical infrastructure facilities, which would include “oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants.” Both sets of laws include exceptions, none of which would apply to newsgathering. Plaintiffs, two news media organizations and a journalist, argued that the statutes violated their First Amendment rights to speech and newsgathering.

The court’s analysis pursued three questions: whether the activity prohibited by the laws was subject to First Amendment protection; if so, what level of scrutiny should apply to its analysis; and finally, whether the laws survived this level of scrutiny. The first question is addressed in this Part One.

Although the defendants argued that plaintiffs’ claimed right to “gather and disseminate news” is not granted by the First Amendment, the court disagreed. The process of creating an image – i.e., the usage of drones to take photographs – was subject to protection in the same way the image itself is; the First Amendment protection of speech must apply to each phase of the “speech process.” The plaintiffs successfully showed that the statutes restricted the use of drones to record news, which thereby constrained their ability to report the news; accordingly, usage of drones to document news by journalists is a protected expression subject to the First Amendment.

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