84 F.4th 632
5th Cir.2023Background
- Texas enacted Chapter 423 (the Texas Privacy Act) regulating drones; two core provisions challenged: (1) “Surveillance” — criminalizes using a drone to capture images of private individuals or private property with intent to conduct surveillance, with numerous exemptions (but no press exemption); and (2) “No‑Fly” — prohibits operating drones below 400 feet over critical infrastructure, prisons, and large sports venues, with some exceptions (including an FAA‑compliant commercial exception).
- Plaintiffs: National Press Photographers Association, Texas Press Association, and freelance journalist Joseph Pappalardo (and individual NPPA members) who allege chilled newsgathering, lost assignments, and monetary harm from compliance with Chapter 423.
- Defendants: Texas DPS Director (McCraw), Texas Highway Patrol Chief (Mathis), and Hays County District Attorney (Higgins); DPS/THP have little to no record enforcement of Chapter 423, while a county DA office prosecuted one drone‑related matter resulting in deferred disposition.
- Procedural posture: District court (2022) granted summary judgment to plaintiffs, enjoined enforcement of Chapter 423 on First Amendment and Due Process grounds; defendants appealed and plaintiffs cross‑appealed on federal preemption grounds.
- Fifth Circuit: affirmed dismissal of field‑preemption claim, vacated the district court’s Due Process and civil‑enforcement injunctions for lack of Article III standing, held state law‑enforcement heads immune under Ex parte Young (so their injunctions were vacated), and reversed as to the remaining First Amendment claims — upholding Chapter 423 on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for pre‑enforcement claims | Plaintiffs say their drone use is chilled and they suffered actual monetary and expressive injury, so they have Article III standing to seek injunctive relief. | Defendants say no imminent enforcement: few/no prosecutions by DPS/THP; injuries are speculative. | Plaintiffs have First Amendment standing (chill + monetary loss); no standing for Due Process claims (no imminent prosecution). |
| Ex parte Young / sovereign immunity | Plaintiffs sued state law‑enforcement heads and a county DA to enjoin enforcement. | Defendants say state officials are protected by Eleventh Amendment sovereign immunity. | DPS Director and THP Chief are immune (no demonstrated willingness to enforce); Hays County DA is not immune (county official) and properly enjoined on First Amendment claim (but ultimately defendants win on the merits). |
| First Amendment — No‑Fly provisions | Plaintiffs contend bans on low‑altitude flights over facilities burden newsgathering and photography (speech). | Defendants argue flight restrictions regulate nonexpressive conduct and do not implicate the First Amendment. | No‑Fly provisions do not implicate the First Amendment (they regulate flight, not speech); facial First Amendment challenge fails. |
| First Amendment — Surveillance provisions | Plaintiffs contend aerial image‑capture is protected expressive activity; law is content/speaker‑based and burdens press. | Defendants argue law regulates the means/location of capture (conduct), protects privacy, is content‑neutral, and is narrowly tailored. | Surveillance provisions subject to intermediate scrutiny and survive: government has substantial privacy interest; law is narrowly tailored and not overbroad. |
| Field preemption by federal aviation law | Plaintiffs argue FAA and federal aviation regulation occupy the field and preempt state drone laws. | Defendants point to FAA statements and regulations that contemplate concurrent state/local regulation (especially re: privacy and low altitudes). | Field preemption not shown; FAA has explicitly declined blanket preemption and contemplates concurrent state rules (affirming dismissal of preemption claim). |
Key Cases Cited
- Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) (recognizes First Amendment right to record police in public; applies qualified protection and time/place/manner limits)
- Peavy v. WFAA‑TV, Inc., 221 F.3d 158 (5th Cir. 2000) (anti‑wiretapping statutes regulated manner of information acquisition and survived intermediate scrutiny)
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (press has no special First Amendment privilege to trespass or to obtain access not available to public)
- Zemel v. Rusk, 381 U.S. 1 (U.S. 1965) (collecting‑information limitations do not automatically create a First Amendment right to access)
- United States v. O'Brien, 391 U.S. 367 (U.S. 1968) (intermediate scrutiny for laws regulating conduct with incidental expressive elements)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requirements: injury‑in‑fact, causation, redressability)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (U.S. 2014) (pre‑enforcement standing doctrine for chilled speech claims)
- R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (U.S. 1986) (preemption analysis: do federal regulations occupy the field or contemplate concurrent state regulation)