The Hawk’s Eye – Consulting & News | A Texas News Source

Texas Sets Drone Precedent: Privacy Preserved

Texas Sets Drone Precedent: Privacy Preserved

By

Introducing The Hawk’s Eye – Consulting & News, your source for engaging and informative Texas news. Our publication focuses on delivering accurate and impactful stories that matter to you, with a primary emphasis on South Texas, including Hays, Bexar, Nueces, Webb, Cameron, and Hidalgo counties. Stay informed about pressing issues and gain a deeper understanding of your government. With a commitment to transparency and accountability, trust us to provide reliable information that holds those in power accountable.


The 5th Circuit Court upheld Texas drone laws, asserting they do not infringe upon First Amendment rights. They quashed arguments for a broad interpretation of the First Amendment to allow drones for filming private property or flying over critical infrastructure without consent. The ruling clarified that there are no press-specific exemptions in the laws and that state drone regulations can coexist with federal laws.


Texas Sets Drone Precedent: Privacy Preserved

Texas Sets Drone Precedent: Privacy Preserved

On October 23, 2023, the 5th Circuit issued a ruling on a case out of Hays County involving Texas drone laws. The court, composed of Judges Clement, Elrod, and Willett, reviewed Chapter 423 of the Texas Government Code, which regulates the use of unmanned aerial vehicles, or drones, in Texas airspace.

The plaintiffs in the case argued for a broad interpretation of the First Amendment, claiming a right to use drones to film private individuals and property without consent. They also asserted a constitutional right to fly drones at low altitudes over critical infrastructure facilities. However, the court disagreed with these claims and ruled against the plaintiffs.

The court emphasized that while it did not preclude potential constitutional defenses in future prosecutions under the drone laws, it held that the facial challenges presented in this case were unsuccessful. As a result, the court reversed and remanded with instructions to enter judgment in favor of the defendants on the constitutional claims.

Furthermore, the court rejected the plaintiffs’ cross-appeal, in which they argued that federal regulations occupy the entire field of drone regulation. Contrary to their claims, the court affirmed the district court’s dismissal of the field-preemption claim, emphasizing that federal law allows for concurrent non-federal regulation of drones, especially concerning privacy and critical infrastructure.

The ruling discussed two key provisions of Chapter 423: the “Surveillance” provisions and the “No-Fly” provisions. The Surveillance provisions make it unlawful to use a drone to capture images of individuals or privately owned real property with the intent to conduct surveillance. The court acknowledged that there are several exemptions to these provisions, such as for law enforcement, the military, academic purposes, and public property. However, the court pointed out that there is no specific exemption for the press.

The No-Fly provisions prohibit flying drones over critical infrastructure facilities, prisons, and large sports venues. Again, the court noted the existence of exemptions, including one for commercial purposes as long as the drone operator complies with Federal Aviation Administration rules and authorizations. Nevertheless, there is no specific exemption for the press in these provisions either.

Violating either the Surveillance or No-Fly provisions is a criminal offense under Texas law, and it may also subject the violator to civil liability. The plaintiffs, in this case, included a freelance journalist and two media-related organizations who argued that Chapter 423 restricted their ability to gather news and engage in aerial photography.

The court considered the concerns raised by the plaintiffs but concluded that the drone laws did not infringe upon their First Amendment rights. The court also highlighted that the organizations representing the press, including the National Press Photographers Association and the Texas Press Association, would benefit from cheaper and safer news coverage if drone photography were permitted.

The defendants in the case were high-ranking state- and county-level officials, including the Director of the Texas Department of Public Safety and the Chief of the Texas Highway Patrol. The district attorney of Hays County, Texas, was also named a defendant. The court noted that these officials had not arrested anyone specifically for violating Chapter 423 but acknowledged that the Hays County district attorney’s office had initiated at least one prosecution related to drone activities.

In conclusion, the 5th Circuit’s ruling upheld the constitutionality of the Texas drone laws, denying the plaintiffs’ claims of a First Amendment right to use drones for photography and surveillance. While the court recognized the concerns raised by the press and the potential impact on news coverage, it found that the existing exemptions within Chapter 423 were sufficient. This ruling provides guidance on the operation of drones in Texas airspace and clarifies the scope of the state’s drone regulations.

The 5th Circuit Takes Up Appeal of Texas Case

The district court initially dismissed Plaintiffs’ claim that the No-Fly provisions are preempted by federal law in 2020. However, in 2022, the court ruled in favor of Plaintiffs on all their remaining theories and issued an injunction preventing Defendants and their subordinates from enforcing Chapter 423. The court found that both the Surveillance and No-Fly provisions violated the First Amendment and Due Process.

Defendants have appealed the decision, arguing that Plaintiffs’ claims lack standing, are barred by sovereign immunity, and lack merit. On the other hand, Plaintiffs assert that the district court should have also enjoined the enforcement of Chapter 423 based on the additional ground that federal law preempts the entire field of aviation safety.

Both parties had the opportunity to present their arguments before the appellate court. The outcome of the appeal will determine whether the district court’s injunction will be upheld or overturned, and whether the constitutionality of Chapter 423 will be affirmed or invalidated.

Texas: The 5th Circuit Reviews Standing

The court ruling addresses the issue of standing for the plaintiffs in their challenge against Chapter 423 of the Texas Government Code. The defendants argue that the plaintiffs lack standing to bring this pre-enforcement challenge. The court agrees in part.

To establish standing, the plaintiffs must show that their members would have standing to sue in their own right, the interests they seek to protect are relevant to their organizations’ purposes, and the claim asserted does not require the participation of individual members in the lawsuit.

The court finds that the plaintiffs lack standing to bring their Due Process claims since they have not been arrested or prosecuted for violating Chapter 423. The court determines that the issue of whether the Surveillance and No-Fly provisions are unlawfully vague is a hypothetical dispute lacking concreteness and imminence.

However, the court concludes that the plaintiffs do have standing to assert their First Amendment claims. In First Amendment cases, standing rules are relaxed to allow citizens to seek relief when their speech might be chilled by fear of sanction. Chilled speech or self-censorship is considered an injury sufficient to confer standing. The court finds that the plaintiffs have provided evidence that their use of drones has been chilled due to Chapter 423, resulting in lost financial opportunities and altered behavior.

The court rejects the defendants’ argument that the plaintiffs’ chill is a subjective self-chill detached from any objective likelihood of enforcement. They emphasize that photojournalists and press organizations are restricting drone photography due to fear of Chapter 423, leading to financial detriment.

In summary, the court determines that the injury-in-fact element is satisfied based on the plaintiffs’ evidence of chilled drone usage, including lost financial opportunities and their conduct after the injunction was issued against Chapter 423.

Texas: The 5th Circuit Reviews Traceability

The court ruling addresses the issue of traceability in relation to the plaintiffs’ challenge against Chapter 423 of the Texas Government Code. The defendants argue that the plaintiffs’ alleged injuries are not directly traceable to their actions since they have not enforced Chapter 423, except for one exception.

In order to establish traceability, the plaintiffs must demonstrate a causal connection between their injuries and the conduct complained of, showing that the injury is fairly traceable to the defendants’ actions and not the result of the actions of a third party.

The court agrees that traceability is satisfied with respect to Director McCraw and Chief Mathis. As the head of the Texas Department of Public Safety (DPS), Director McCraw is responsible for enforcing laws related to public safety, including Chapter 423. Likewise, Chief Mathis, as the person in charge of the Texas Highway Patrol, has statewide law enforcement authority and is also a proper defendant. Both defendants acknowledge their authority to enforce Chapter 423, and any chilled speech resulting from the threat of enforcement can be fairly traced back to them. The court notes that litigants have previously had standing to sue Director McCraw in federal district court for alleged violations of the federal Constitution.

The court also determines that the plaintiffs’ chill can be fairly traced to District Attorney Higgins. As the district attorney, he is responsible for prosecuting individuals who violate criminal laws, and prosecutors have traditionally been recognized as appropriate targets for injunctive suits. The Hays County district attorney’s office has previously prosecuted a drone-related case under Chapter 423, and an injunction against future enforcement is likely to provide redress for the plaintiffs’ claimed injury.

In summary, the court concludes that the plaintiffs have standing to bring their First Amendment claims, with the exception that they cannot sue the defendants to enjoin the enforcement of Chapter 423’s civil penalties. The court clarifies that only private individuals who have been harmed by a violation of Chapter 423 may sue to enforce the civil penalties, and the district court’s order on this matter lacks jurisdiction and must be vacated.

Texas: The 5th Circuit Reviews Jurisdiction

The court analyzed whether the defendants in the case are entitled to sovereign immunity. The general rule is that states, state officials, and state agencies are immune from suits under the Eleventh Amendment and the doctrine of sovereign immunity. However, there is an exception known as Ex parte Young, which allows plaintiffs to sue a state officer in their official capacity for an injunction to stop ongoing violations of federal law.

To determine whether this exception applies, the court considered the “some connection” test. This test requires the defendant to have more than just a general duty to enforce the laws of the state. They must have a particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty. Additionally, enforcement means compulsion or constraint.

In the case of Director McCraw and Chief Mathis, the heads of Texas law-enforcement agencies, they easily meet two of the considerations. They have more than a general duty to enforce the laws and they exercise compulsion or constraint in enforcing Texas’s criminal laws. However, the key component of a demonstrated willingness to exercise their duty is missing. The record evidence shows that they have never enforced Chapter 423 specifically, even though there have been some warnings and citations related to drone operators. As a result, the Ex parte Young exception is held to be inapplicable to Director McCraw and Chief Mathis, and they are entitled to sovereign immunity.

On the other hand, the Hays County District Attorney, Defendant Higgins, is not protected by state sovereign immunity because state sovereign immunity applies only to states and state officials, not to political subdivisions like counties and county officials. Therefore, Defendant Higgins is not entitled to sovereign immunity.

In summary, the court ruled that Director McCraw and Chief Mathis are entitled to sovereign immunity, while Defendant Higgins is not.

Texas: The 5th Circuit Reviews Surveillance and No-Fly Provision

The court proceeds to analyze the First Amendment implications of the Surveillance and No-Fly provisions in the Texas drone laws.

Regarding the No-Fly provisions, which prohibit flying drones under 400 feet above certain facilities and venues, the court determines that these provisions do not implicate the First Amendment. It states that flying a drone is not inherently expressive, and the No-Fly provisions are flight restrictions, not speech restrictions. The court dismisses the argument that the No-Fly provisions interfere with photojournalism, stating that the right to speak and publish does not include an unrestricted right to gather information. Therefore, the court reverses the district court’s judgment that the No-Fly provisions violate the First Amendment.

Moving on to the Surveillance provisions, the court acknowledges that these provisions do implicate some First Amendment protections. The Surveillance provisions make it unlawful to use a drone to capture images of individuals or property without their consent, with the intent to conduct surveillance. The court recognizes that restrictions on filming can implicate the First Amendment, especially when privacy rights are at stake. It cites previous cases and debates on the extent of constitutional protections for the right to film. Ultimately, the court holds that the act of making an audio or audiovisual recording is included within the First Amendment’s guarantee of speech and press rights. It refers to the precedent set by the Seventh Circuit in ACLU of Illinois v. Alvarez, which concluded that the act of making a recording is inherently expressive and deserving of protection. The court also mentions its own circuit’s decision in Turner v. Lieutenant Driver, which recognized a right to film the police based on the principles of the First Amendment. However, the court emphasizes that the right to film is not absolute and is subject to reasonable time, place, and manner restrictions.

In summary, the court determines that the No-Fly provisions do not violate the First Amendment, as flying a drone is not inherently expressive. While the Surveillance provisions implicate some First Amendment protections, the court does not reach a final decision on their constitutionality, leaving it open for further scrutiny.

Texas: The 5th Circuit Reviews Scrutiny

The court applies intermediate scrutiny to analyze the First Amendment implications of the Surveillance provisions in the Texas drone laws. They argue that although aerial surveillance is not inherently expressive, intermediate scrutiny is appropriate in this context for several reasons.

First, intermediate scrutiny is the default level of scrutiny for laws that do not directly regulate the content of speech but pose a less substantial risk of excluding certain ideas or viewpoints from public dialogue. The Surveillance provisions do not directly regulate speech or target any specific message or subject matter, but rather the means by which images are captured.

Second, it is the level of scrutiny suggested in the court’s previous right-to-film case, Turner v. Lieutenant Driver.

Third, intermediate scrutiny was applied in a similar case, Peavy v. WFAA-TV, Inc., which involved a challenge to anti-wiretapping laws. The court held that intermediate scrutiny applied because the laws restricted communication based solely on the means by which it was acquired.

The court rejects the plaintiffs’ argument that strict scrutiny should apply. They argue that the Surveillance provisions are content-based restrictions on speech because they require officials to determine the content of the image to determine its permissibility. However, the court states that the provisions are not content-based because they classify images as lawful or unlawful based on the means by which they are captured, not the content of the image itself.

The plaintiffs also argue that the provisions discriminate on the basis of content because they favor certain speakers (drone operators) over others. However, the court argues that speaker-based distinctions do not trigger strict scrutiny unless they are based on the speaker’s message, not just the manner of communication.

Finally, the plaintiffs argue that the provisions impose a direct burden on newsgathering and journalism, but the court states that restrictions on drone usage do not trigger strict scrutiny. The court emphasizes that the press has no special privilege to invade the rights and liberties of others and that gathering news does not afford a right to compel others to supply information.

In conclusion, the court determines that, at most, intermediate scrutiny applies to the Surveillance provisions because they regulate the manner in which images are captured, not the content of the images themselves. This approach is in line with previous rulings and recognizes the distinction between recording in public spaces and unauthorized recording on private property.

Texas: The 5th Circuit Reviews Standard

Under, a content-neutral regulation must further an important governmental interest unrelated to the suppression of free expression. The regulation must also impose no greater restriction on First Amendment freedoms than necessary to achieve that interest. In this case, the court applies the standard to the Surveillance provisions of the Texas drone laws.

The court determines that the government has a substantial interest in protecting the privacy rights of its citizens, which is unrelated to suppressing free expression. Drones have unique capabilities that can potentially invade privacy rights, making it necessary to regulate their use. The court finds that the Surveillance provisions are narrowly tailored to protect privacy rights and would be less effective if not for the regulations.

The court rejects the plaintiffs’ argument that the Surveillance provisions violate the overbreadth doctrine. The provisions are narrowly tailored and cover only those applications that are necessary to protect privacy rights. The plaintiffs have not provided evidence of unconstitutional applications of the law.

In conclusion, the court holds that the Surveillance provisions survive intermediate scrutiny and do not violate the First Amendment. The provisions are specifically aimed at protecting the privacy of private individuals and property while allowing for surveillance and photography of public spaces and individuals in those spaces. The distinction between public and private subjects is crucial in determining the government’s interest in privacy.

Texas: The 5th Circuit Reviews Cross-Appeal

Plaintiffs’ cross-appeal challenges the dismissal of their field-preemption claim regarding the No-Fly provisions of the Texas drone laws. The court first addresses whether the plaintiffs have standing to raise a preemption claim. While their Due Process challenge lacked an imminent or concrete threat of enforcement, the court determines that ongoing pecuniary harm can confer standing for a preemption claim. One plaintiff testified that Chapter 423 has caused him financial losses and placed him at a disadvantage compared to out-of-state competitors, establishing traceability and redressability for the injury. Therefore, the court concludes that the plaintiffs have standing to raise their preemption claim.

Moving on to the merits of the field-preemption claim, the court explains that field preemption occurs when states are prohibited from regulating conduct in a field that Congress has determined must be regulated by federal authority. However, field preemption is disfavored, and courts should only infer it if there is clear and manifest congressional intent to occupy the entire field. The court finds that the plaintiffs have not shown that Congress intended to occupy the entire field of drone regulation or that the Federal Aviation Administration (FAA) intended to do so. The FAA explicitly acknowledged the possibility of concurrent state regulation of drones and stated that certain legal aspects, such as individual privacy, may be best addressed at the state or local level. The court also highlights that a recent FAA fact sheet confirms the FAA’s intent to permit concurrent state regulations, especially regarding security-related restrictions on critical infrastructure. Therefore, the court affirms the district court’s dismissal of the preemption claim, concluding that Chapter 423 is not field preempted.

Finally, the court addresses the plaintiffs’ facial challenge to Chapter 423, emphasizing that such a challenge is difficult to successfully mount. They assert that the First Amendment grants them an unqualified right to conduct aerial surveillance on non-consenting individuals on private property and to fly drones at low altitudes over critical infrastructure. However, the court rejects this expansive interpretation of the First Amendment, stating that the Constitution does not permit filming a neighbor in their own home for surveillance purposes without consent. The court clarifies that its holding does not preclude all First Amendment and Due Process challenges to Chapter 423 and acknowledges the possibility of as-applied challenges in the future.

Texas: The 5th Circuit Enters Judgement

The court has reached a decision on various aspects of the case involving the Texas drone laws. Here are the key points of the judgment:

  1. The court finds that the plaintiffs lack standing to bring their claims regarding the civil provisions of Chapter 423, the Due Process grounds, and the First Amendment claims against Director McCraw and Chief Mathis. As a result, the injunction against enforcing these provisions is vacated, and the claims are remanded for dismissal.
  2. However, the court determines that the plaintiffs have standing to assert their First Amendment claims against Defendant Higgins, the Hays County District Attorney. The injunction against his enforcement of Chapter 423 is reversed and remanded with instructions to enter judgment in favor of Defendant Higgins on the First Amendment claims.
  3. The court affirms the district court’s dismissal of the plaintiffs’ preemption claims. It concludes that the Federal Aviation Administration (FAA) allows for concurrent state regulations of drones and that Congress did not intend to occupy the entire field of drone regulation.

In summary, the court’s judgment entails dismissing some of the plaintiffs’ claims, vacating and remanding parts of the district court’s order, and affirming the dismissal of the preemption claims.

This decision clarifies the standing, jurisdiction, and constitutionality issues surrounding Chapter 423 of the Texas drone laws and provides guidance on its enforcement.

Texas: Summary

In a recent landmark ruling, the 5th Circuit Court addressed the constitutionality of Texas’ drone laws in a case involving First Amendment rights. The court reviewed Chapter 423 of the Texas Government Code, which regulates the use of drones in the state’s airspace. The plaintiffs in the case argued for broad interpretation of the First Amendment, claiming a right to use drones for filming private individuals and property without consent. They also asserted a constitutional right to fly drones over critical infrastructure facilities. However, the court disagreed with these claims and ruled against the plaintiffs.

The court highlighted that while it did not preclude potential constitutional defenses in future prosecutions under the drone laws, the facial challenges presented in this case were unsuccessful. The court reversed and remanded with instructions to enter judgment in favor of the defendants on the constitutional claims.

Additionally, the court rejected the plaintiffs’ cross-appeal, in which they argued that federal regulations occupy the entire field of drone regulation. The court affirmed the district court’s dismissal of the field-preemption claim, emphasizing that federal law allows for concurrent non-federal regulation of drones.

The ruling focused on two key provisions of Chapter 423: the “Surveillance” provisions and the “No-Fly” provisions. The Surveillance provisions make it unlawful to use a drone to capture images of individuals or privately owned property with the intent to conduct surveillance. The No-Fly provisions prohibit flying drones over critical infrastructure facilities, prisons, and large sports venues.

The court recognized that there are exemptions to these provisions, such as for law enforcement, the military, academic purposes, and public property. However, it emphasized that there is no specific exemption for the press in either provision.

Violating these provisions is a criminal offense under Texas law and may subject the violator to civil liability. The court considered the concerns raised by the plaintiffs, who included a freelance journalist and media-related organizations, but concluded that the drone laws did not infringe upon their First Amendment rights.

The court also addressed the issues of standing, traceability, jurisdiction, scrutiny, and preemption in relation to the plaintiffs’ claims. It determined that the plaintiffs had standing to assert their First Amendment claims, except for the enforcement of civil penalties. It reviewed the application of sovereign immunity to the defendants and concluded that Director McCraw and Chief Mathis were entitled to sovereign immunity, while Defendant Higgins was not.

Regarding the constitutionality of the Surveillance provisions, the court recognized that they implicate some First Amendment protections. It applied intermediate scrutiny and determined that the provisions further an important governmental interest unrelated to the suppression of free expression.

Ultimately, the court held that the Surveillance provisions survive intermediate scrutiny and do not violate the First Amendment. It found they were narrowly tailored to protect privacy rights, and the distinction between public and private subjects was crucial in determining the government’s interest in privacy.

The court affirmed the district court’s dismissal of the plaintiffs’ preemption claims, concluding that Chapter 423 is not field preempted. It rejected the plaintiffs’ arguments that the provisions were content-based restrictions or discriminatory.

In summary, the court’s judgment dismissed some of the plaintiffs’ claims, vacated and remanded parts of the district court’s order, and affirmed the dismissal of the preemption claims. The ruling provides clarity on the constitutionality of Texas’ drone laws and offers guidance on their enforcement.

Disclaimer

** The following opinion is based on the provided information and should not be considered legal advice or a substitute for professional legal counsel. The opinion expressed is solely for informational purposes and does not constitute an endorsement or guarantee of accuracy by The Hawk’s Eye – Consulting & News. As laws and regulations may vary by jurisdiction and change over time, it is essential to consult with a qualified attorney or legal expert to obtain advice tailored to your specific circumstances. The Hawk’s Eye – Consulting & News shall not be held liable for any actions taken or decisions made based on the information provided in this opinion.**


A Couple of Our Other Reads

You may be interested in our publishing on two State Board of Pharmacy officers resigning to avoid termination.

Or you may find our publishing about a TABC officer resigning to avoid termination, of interest.


Follow Us on Social Media

If you are interested in staying updated on matters about your government in Texas and other important stories, trust The Hawk’s Eye – Consulting & News to provide reliable information that matters to you. You can follow us on social media platforms such as Facebook, Instagram, X, Reddit, YouTube, Tumblr, and LinkedIn to stay connected and informed.

FACEBOOK: TheHawksEyeNews
INSTAGRAM: Hawk_s_Eye_C_and_N
X: TheHawksEyeNews
REDDIT: TheHawksEyeCN
YOUTUBE: The Hawk’s Eye – Consulting & News
TUMBLR: The Hawk’s Eye – Consulting & News
LINKEDIN: The Hawk’s Eye – Consulting & News


Leave a Reply

Your email address will not be published. Required fields are marked *