Texas’ drone law, the “Use of Unmanned Aircraft,” is being challenged by press organizations and photographers for alleged violations of the First Amendment. The law prohibits the capture of images of a person or property while conducting “surveillance.” It takes it a step further and makes it a crime to use the images captured during surveillance. However, the law has an exemption for the use of such images for educational purposes (among others), but newsgathering is NOT one of them.

The plaintiffs claim the drone law stifles their ability to do their jobs, a violation of the First Amendment. This week, U.S. District Court for the Western District of Texas, Judge Robert Pitman, said in his ruling on the State’s Motion to Dismiss that the plaintiffs sufficiently alleged that the surveillance provisions are a content-based regulation of speech because it exempts some speakers from liability but NOT journalists. Judge Pitman also said that the claim that the definition of surveillance under the law is vague and therefore may also survive the Motion.

However, the portion of the complaint that did not survive the State’s Motion was the claim that the law’s no-fly zone over prisons and other specified areas is preempted by federal regulations. Judge Pitman said the plaintiffs failed to adequately allege that the regulations occupy the total sphere of drone regulation or that the no-fly zone is inconsistent with the federal goal of uniform drone regulation.

The Texas legislature will reconvene in 2021. Perhaps lawmakers will amend the regulations to address some of these issues.

For more information, the case is Nat’l Press Photographers Ass’n v. McCraw, 2020 BL 464053, W.D. Tex., 1:19-CV-946-RP.