June 27, 2022

Volume XII, Number 178

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June 27, 2022

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Texas Drone Law Unconstitutional

U.S. District Judge Robert Pitman struck down a Texas drone law (one of the most restrictive in the U.S.), for violating the First Amendment’s protections of freedom of speech and the press. While there have been other cases in which the court has struck down similar laws in municipalities, this is the first time that a state law regulating drone operations has been struck down as unconstitutional.

The law, Chapter 423 of the Texas Government Code, was challenged by the National Press Photographers Association (NPPA), the Texas Press Association (TPA), and three Texas-based photojournalists. The parties argued that the law improperly prohibited the use of drones to collect images used for newsgathering purposes. While Chapter 423 does include exceptions to these restrictions (e.g., surveying, real estate work, and academic research), there is no exception for news reporting. The purpose of the law was to restrict the use of drones to collect images of private property or to use drones for surveillance.

Therefore, Judge Pitman ruled that Chapter 423 was unconstitutional and could not be enforced by any government or police entity, saying this was a content-based restriction, which is impermissible under the First Amendment.

Judge Pitman also took issue with the ”no-fly” provisions of Chapter 423. The law also prohibits drones from flying over a correctional facility, detention facility, critical infrastructure facility or sports venue at lower than 400 feet and imposes criminal sanctions. Critical infrastructure is defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants, as well as animal-feeding operations, oil and gas drilling sites, and chemical production facilities, among others. Sports venues include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is “primarily used” for one or more professional or amateur sport or athletics events. The plaintiffs argued that these ”no-fly” restrictions, when combined with the Federal Aviation Administration’s drone regulations (which require drones to fly at 400 feet or lower), effectively ban the use of drones at these locations even if, for example, a stadium requests that coverage of a sporting event be photographed or videographed using a drone.

This ruling will likely affect rulings in other states in which there are constitutional challenges to laws restricting drone use. To read Judge Pitman’s ruling, click here.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 97
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About this Author

Kathryn Rattigan Attorney Cybersecurity Data Privacy
Associate

Kathryn Rattigan is a member of the firm's Business Litigation Group and Data Privacy + Cybersecurity Team. She advises clients on data privacy and security, cybersecurity, and compliance with related state and federal laws. Kathryn also provides legal advice regarding the use of unmanned aerial systems (UAS, or drones) and Federal Aviation Administration (FAA) regulations. She represents clients across all industries, such as insurance, health care, education, energy, and construction.

Data Privacy and Cybersecurity Compliance

Kathryn helps clients comply...

401-709-3357
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