The Fifth Circuit’s recent decision in National Press Photographers Association v. McCraw threatens to dilute the First Amendment rights of photographers and filmmakers using uncrewed aircraft systems (UAS), and undermine federal control of the airspace. The court’s holdings on both the First Amendment and preemption are troubling, and undoubtedly will have an impact on UAS operations in Texas; they may also provide momentum for similar regulatory barriers in other states. The Fifth Circuit’s misreading of the Federal Aviation Administration’s (FAA) new fact sheet is especially problematic and is indicative of how other reviewing courts may misinterpret the document moving forward. Nevertheless, the decision leaves room for new legal challenges down the line, including as-applied First Amendment challenges and conflict preemption claims.

Background: The District Court’s Favorable Ruling on NPPA’s First Amendment Claim and Rejection of Preemption

In late 2019, the National Press Photographers Association (NPPA), brought suit in federal district court, challenging two provisions of Chapter 432 of the Texas Government Code that regulate UAS use. The group argued that two sets of Code provisions, colloquially the “Surveillance” provisions and the “No-Fly” provisions, constituted facial violations of the First Amendment. They also asserted that the No-Fly provisions are preempted by federal regulation of the national airspace.

The Surveillance provisions of the Code impose criminal and civil penalties for capturing an image of an individual or privately-owned real property in the state with the intent to conduct surveillance on such an individual or property, and similarly criminalize the possession or use of such images by the person that captured them. The provisions also allow landowners or tenants to bring civil actions against persons who violate either of these prohibitions. The No-Fly provisions in the Code impose criminal penalties for flying UAS at less than 400 feet over correctional, detention, or “critical infrastructure” facilities and sports venues. As with many similar state regulations, what constitutes “critical infrastructure” might come as a surprise—for example, Texas includes commercial feed lots in this category, on the theory that drones could be used to attack the nation’s cattle supply. While certain UAS users are exempted under these provisions—including those with “commercial purposes”—newsgathering UAS users are not.

Defendants originally made several procedural arguments in a motion to dismiss that the district court rejected, including a sovereign immunity argument. Ultimately, the court found that the State Defendants fell within the Ex Parte Young exception to sovereign immunity and denied their motion on this point. The district court also rejected Defendants’ motion to dismiss the First Amendment claims, finding that Plaintiffs plausibly stated facial claims under the First Amendment. The district court, however, granted the motion to dismiss Plaintiffs’ preemption claims, distinguishing the case from the Massachusetts district court decision in Singer v. Newton. For more analysis of the district court’s judgment on preemption in McCraw, see our blog post here.

On summary judgment, the district court ultimately sided with the Plaintiffs on their First Amendment claims. In its Order, the court stated, “the process of creating images finds just as much protection in the First Amendment as the images themselves do.” The district court held that both the Surveillance and No-Fly provisions were barred by the First Amendment.

The Defendants appealed the district court’s First Amendment ruling and the Plaintiffs cross-appealed the district court’s preemption judgment, leading to the case’s arrival before the Fifth Circuit Court of Appeals.

The Latest: The Fifth Circuit Reverses on the First Amendment, Leaving the Texas Drone Restrictions Intact

In a decision handed down at the end of October, the Fifth Circuit vacated the district court’s judgment on the First Amendment claim and upheld the lower court’s dismissal of the preemption claim. On standing, the decision rejects the Defendants’ argument that there is no injury or traceability, finding that the law is sufficient to chill speech even in the absence of enforcement. But the court accepts the State Defendants’ sovereign immunity argument, finding that Ex Parte Young does not apply because there is “[n]ot even an iota of a scintilla” of enforcement, and therefore there is no sufficient connection between the state officials and the injury.

The Fifth Circuit nevertheless reaches the merits, because sovereign immunity does not extend to local jurisdictions like Hays County. Rejecting the district court’s First Amendment holding on the No-Fly provisions, the court holds that these provisions precluding drone operations over certain facilities have nothing to do with speech or expressive activity; “[t]hese are flight restrictions, not speech restrictions.” The court of appeals comes to a different conclusion on the Surveillance provisions, finding that these restrictions on collecting images do have the potential to impact speech and therefore are covered by the First Amendment. Citing the Fifth Circuit’s leading case on the right to film police, Turner v. Lieutenant Driver, the opinion recognizes a First Amendment right to film more broadly by reiterating “there is no fixed First Amendment line between the act of creating speech and the speech itself.”

However, the Fifth Circuit disagrees with the lower court’s decision to apply strict scrutiny to the Surveillance provisions. The district court originally sided with the NPPA and subjected both provisions to strict judicial scrutiny by concluding that the provisions were content-based. Applying this heightened standard of review, the district court found that the law neither served a compelling government interest nor was narrowly tailored. The Fifth Circuit holds that “restrictions on the right to film—not just police but in general—are subject to at least some level of First Amendment scrutiny,” but that the proper level of scrutiny is intermediate, because this case involves “the manner in which information is acquired.” Citing the Supreme Court’s decision in Turner Broadcasting, the court states, “[i]t is not enough to say that the law distinguishes between speakers; to trigger strict scrutiny, the distinction must be based on the speaker’s message, not just the manner in which the speaker communicates.” The court also analogizes to Peavy v. WFAA-TV, Inc. where a panel for the Fifth Circuit previously held that a First Amendment challenge to anti-wiretapping statutes was subject to intermediate scrutiny because, according to the court, those statutes regulate the way information is acquired rather than its content.

Applying intermediate scrutiny, the court concludes that the government has a substantial interest in protecting the rights of its citizens and notes that “drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach.” The court further reasons that the government’s goal of protecting privacy would be achieved “less effectively” without the law, and because the law contains an exception for images that could be captured using ordinary means, the law is properly tailored. This holding appears to be in tension with the recent decision of the Eastern District of New York in Xizmo Media Productions v. City of New York, where the court also applied intermediate scrutiny but found that the Plaintiff’s First Amendment claim against New York City’s drone regulations withstood the City’s motion to dismiss; the Fifth Circuit does not address Xizmo.

Moving to the preemption cross-appeal, the Fifth Circuit only addresses field preemption arguments because, according to the court, only field preemption “was in the complaint.” In its field preemption discussion, the Fifth Circuit holds that federal law has not “completely preempted the field regarding drones flying over certain buildings and structures.” With that broad framing of the field, the court of appeals finds that it is not occupied by federal law; indeed, the court notes that there are a variety of areas where states are empowered to regulate drone flights. The court of appeals also references the recently issued FAA fact sheet that more concretely outlines the contours of federal preemption of state and local UAS regulation than the agency’s initial 2015 fact sheet. The court finds that the new fact sheet supports, rather than undermines, its decision on preemption. Quoting the fact sheet, the court states:

[I]n [the new fact sheet], the FAA again expressly contemplates concurrent regulation with States and localities. That ends the matter. But even more importantly, as an example of a permissible concurrent state regulation, the fact sheet states that “security-related restrictions over open-air water treatment facilities or certain types of critical infrastructure” are likely not to be preempted, particularly if the restrictions are “limited to the lower altitudes.” The No-Fly provisions, which prohibit drone flights less than 400 feet over critical infrastructure, are thus expressly permitted, not preempted, even under the fact sheet.

What Does the Fifth Circuit’s Ruling Mean for the UAS Industry and the First Amendment Right to Gather News?

The court’s negative findings on the First Amendment and field preemption are undoubtedly troubling and, if they stand, will give states and localities more momentum to adopt onerous restrictions on UAS use within their jurisdictions. Further, the court appears to apply both doctrines incorrectly, in multiple respects:

• On the First Amendment, among other issues, the court’s decision to apply intermediate scrutiny rests on an overly narrow reading of the impact of the Surveillance provisions. While the court characterizes these provisions as not distinguishing based on the “speaker’s message,” in fact the Surveillance provisions specifically discriminate against photographs taken for journalistic purposes—and in favor of photographs taken for other reasons. But even the court’s application of intermediate scrutiny to the facts of the case raises questions. The court holds that there is substantial government interest in protecting citizens’ privacy, and that drones “have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach.” While the court’s holding implicitly suggests that all or most aerial picture-taking would violate privacy interests “of a constitutional dimension,” the court does not go into detail about the scope of these privacy rights and appears to simply assume their existence. Nor does the court meaningfully grapple with whether the Surveillance provisions are “no greater than is essential to the furtherance of that interest,” as the Supreme Court required in Turner. Instead, again relying on Peavy, the court simply finds that the Surveillance provisions are narrowly tailored because the “government’s ability to accomplish its goal of protecting privacy rights would be ‘achieved less effectively'” without them. Moreover, because the Texas law has an exclusion for images captured below eight feet, the court holds that it bars “only surveillance that could not be achieved through ordinary means,” though it provides little analysis of “ordinary” in this context and how it impacts the supposed privacy rights the state seeks to protect. Finally, as noted above, the Fifth Circuit’s analysis of intermediate scrutiny appears to be at odds with the Eastern District of New York’s holding in Xizmo. While the drone restrictions and the interests proffered to justify them differ in the two cases, the Xizmo court conducted a more searching analysis of both the government’s purported interest and the tailoring of the restrictions than did the Fifth Circuit in McCraw.
• On field preemption, the court articulates a field— “drone regulation”—that is both too narrow (it does not look to aviation more broadly) and too broad (it sweeps in all regulations relating to drones). No one doubts that there is some room for states and localities to regulate in some fashion that impacts the drone industry, but that hasn’t been the thrust of aviation-related field preemption claims in the crewed aircraft context. Instead, courts have looked to whether a locality has sought to regulate in the field of airspace management or aviation safety—the same fields identified by the FAA in the new fact sheet. By defining the field as “drone regulation,” the court creates a strawman field that it can easily find the federal government does not occupy. But in so doing, the court avoids the question of whether a no-fly zone for an entire category of aircraft purports to regulate within the federally occupied field of airspace management. We as practitioners in this space continue to believe it does.

However, there are silver linings, again as related to both parts of the court’s decision:

• The court’s decision leaves the door open to future First Amendment challenges, even as to this specific Texas law, down the line. As the court expressly holds, “[i]t is possible that, in an as-applied challenge, a plaintiff or defendant may persuasively show that a particular enforcement of Chapter 423 runs afoul of free speech or fairness principles.” Of course, the court’s analysis of the First Amendment challenges raises questions as to whether an as-applied challenge against county or state officials could ever be successful.
• By finding that conflict preemption was not pled in the complaint, the Fifth Circuit issues no actual holding as to whether the Texas law is conflict preempted—in other words, whether the Texas law impermissibly conflicts with the objects and purposes of federal law that regulates drone operation. Future litigants in similar cases can plead individual preemption theories more directly to ensure the court will consider them. And because they seek to invalidate laws on much narrower grounds than field preemption challenges, conflict preemption claims have a higher likelihood of success in court.

Perhaps the most disappointing part of the Fifth Circuit’s opinion is the court’s treatment of the new FAA fact sheet. As we previously explained, the fact sheet is a helpful and accurate guidance document that makes significant strides in clarifying the legal landscape. While we also acknowledged that parts of the fact sheet may be oversimplified and could lead to misunderstandings by regulators and courts, the Fifth Circuit misunderstands and overlooks portions of the fact sheet that are actually quite clear. In particular, the court looks to the FAA’s example of “security-related restrictions over open-air water treatment facilities or certain types of critical infrastructure” that are “limited to the lower altitudes,” as an example of a “permissible” regulation. But, in so doing, the court:

• Completely misunderstands “limited to the lower altitudes.” The court incorrectly asserts that a regulation limiting UAS operations up to 400 feet is a regulation “limited to the lower altitudes,” even though the fact sheet expressly states that the envisioned regulation would “still permit [] UAS overflight (g., by commercial package delivery UAS) at higher altitudes.” The fact sheet then clarifies in a footnote that UAS are permitted to operate up to 400 feet under FAA regulations, which means that a regulation that restricted flights up to this altitude necessarily would not permit UAS overflight at higher altitudes and therefore could not be a regulation that is “limited to the lower altitudes.”
• Does not think critically about the category of “critical infrastructure” the FAA identifies. The court likewise does not observe the qualifying language in the FAA’s example of the types of facilities over which flights potentially could be restricted. Specifically, the FAA references “open-air” water facilities and “certain types” of critical infrastructure. The FAA is likely thinking about facilities that would be particularly vulnerable to damage or disruption by a nefarious actor seeking to operate overhead. The court simply assumes that any type of restriction over any type of facility that the Texas legislature deems appropriate is the same as what the FAA is getting at with this example.
• Ignores that a conflict preemption analysis would be necessary. The court wholly ignores the fact that the fact sheet is not giving an example of a “permissible” regulation at all. In this portion of the document, the fact sheet is offering examples of state and local regulations that may or may not be conflict preempted. To be in this category, a state or local regulation must purport to advance objectives other than aviation safety or airspace efficiency (the areas where federal law occupies the field). When a regulation falls in this category, it still can be preempted—to make that determination, a reviewing court must assess “whether the law negatively impacts safety and [] how much of an impact the law has on the ability of UAS to use or traverse the airspace.” In giving the critical infrastructure example, the FAA says this type of regulation is “more likely [to] be permissible” if it is limited to lower altitudes, but in no way suggests that the conflict preemption analysis that it laid out in the bullet immediately prior is somehow inapplicable. The Fifth Circuit decision nonetheless suggests that if a state or local law does something that looks like the example the FAA is giving in this portion of the fact sheet—here, restricting flight over “critical infrastructure”—the impact analysis is unnecessary, and the regulation is permissible. This is simply incorrect.

Worse yet, the court conducts this faulty analysis of the FAA fact sheet completely unnecessarily. As noted above, the court concludes conflict preemption theories were not properly before it. Yet this dicta undoubtedly will influence how other courts read the fact sheet moving forward.

The Fifth Circuit’s treatment of the fact sheet underscores that while the document is a great first step in outlining the scope of federal preemption and state and local authority, more needs to be done. The FAA must continue to refine its public guidance about the scope of federal interests in this area, and indeed should provide regulatory leadership through increased rulemaking and participation in private litigation that impacts the scope of federal authority in this area.

Melissa Alba, a law clerk in the Telecom, Media & Technology Practice, contributed to this blog post.

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