Update: Unfortunately, on January 10, 2024, the U.S. Court of Appeals for the Fifth Circuit denied the petition for rehearing en banc and effectively reinstated its earlier conclusion that the Texas law does not violate the First Amendment.
On November 27, the Alliance joined a brief in National Press Photographers Association v. McCraw in the United States Court of Appeals for the Fifth Circuit, along with a coalition of news organizations in urging the Fifth Circuit to grant an en banc review of the panel’s earlier opinion which reversed the lower court’s finding that Texas’s restrictive drones is unconstitutional. The Texas law criminally bars some, but not all, drone operators from capturing images of private property or people on private property “with the intent to conduct surveillance”. The law provides exemptions for some favored speakers, including academics, students, and insurers, but not the press. The brief, drafted by Ballard Spahr LLP, argues that the law violates the First Amendment, and the panel’s decision is flawed in concluding that the statute does not regulate speech and is not subject to strict scrutiny. The outcome of this case will be significant, as drones have become an important component of newsgathering and reporting on matters of public interest.
Charlotte McBirney is Senior Counsel and Director, Public Policy for the News/Media Alliance.