Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
NATIONAL PRESS PHOTOGRAPHERS §
ASSOCIATION, TEXAS PRESS §
ASSOCIATION, and JOSEPH §
PAPPALARDO, §
§
Plaintiffs, §
§
v. § 1:19-CV-946-RP
§
STEVEN MCCRAW, in his official capacity as §
Director of Texas Department of Public Safety , §
RON JOY, in his official capacity as Chief of §
The Texas Highway Patrol , and WES MAU, §
in his official capacity as District Attorney of §
Hays County, Texas , §
§
Defendants. §
ORDER
Before the Court is a Motion to Dismiss by Defendants Steven McCraw, in his official capacity as Director of Texas Department of Public Safety (“McCraw”), Ron Joy, in his official capacity as Chief of the Texas Highway Patrol (“Joy”), and Wes Mau, in his official capacity as District Attorney of Hays County, Texas (“Mau”) (together “Defendants”). (Dkt. 19). Plaintiffs National Press Photographers Association (“NPPA”), Texas Press Association (“TPA”), and Joseph Pappalardo (“Pappalardo”) (together “Plaintiffs”) filed a response. (Dkt. 23). McCraw and Joy replied together, (Dkt. 25), and Mau replied separately, (Dkt. 26). [1] Having considered the briefing, the record, and the applicable law, the Court will grant in part and deny in part the Motion to Dismiss.
I. BACKGROUND
Plaintiffs challenge the constitutionality of certain provisions of Chapter 423 of the Texas Government Code (“Chapter 423 provisions”), which regulate the use of unmanned aerial vehicles (“UAVs”), otherwise known as drones. (Compl., Dkt. 1, at 1). Plaintiffs allege that the civil and criminal penalties within the Chapter 423 provisions restrict the First Amendment right to newsgathering and speech and chill Plaintiffs and their members from using UAVs for certain newsgathering activities. ( Id. ). The following are facts as alleged within Plaintiffs’ complaint. (Dkt. 1).
A. Surveillance Provisions
Plaintiffs challenge Texas Government Code Sections 423.002, 423.003, 423.004, and 423.006 (together “Surveillance Provisions”). (Compl., Dkt. 1, at 3, 6–8). Section 423.003 imposes criminal and civil penalties by declaring it unlawful to “capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property contained in the image.” ( at 2, 6); T EX . G OV ’ T C ODE § 423.003(a). Section 423.004 criminalizes the possession, disclosure, display, distribution, or other use of images by a person who captured those images in violation of Section 423.003. (Compl., Dkt. 1, at 6); T EX . G OV ’ T C ODE § 423.004(a). Under Section 423.006, a landowner or tenant may bring a civil action against a person who violates Section 423.003 or 423.004. (Compl., Dkt. 1, at 7); T EX . G OV ’ T C ODE § 423.006(a). Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. (Compl., Dkt. 1, at 2, 7); see T EX . G OV ’ T C ODE § 423.002. Exemptions include “professional or scholarly research and development or . . . on behalf of an institution of higher education.” T EX . G OV T C ODE § 423.002(a)(1).
Plaintiffs argue that the Surveillance Provisions are unconstitutionally content- and speaker- based because the exemptions in Section 423.002 prohibit or allow the use of UAVs based on the purpose for which the image was captured, the identity of the person capturing the image, or the content of the image. (Compl., Dkt. 1, at 7). Plaintiffs also argue that the Surveillance Provisions are unconstitutionally vague and overbroad because the term “surveillance” is not defined. (Compl., Dkt. 1, at 2).
B. No-Fly Provisions
Plaintiffs also challenge Sections 423.0045 and 423.0046 (together “No-Fly Provisions”), which impose criminal penalties by making it unlawful to fly UAVs over a “Correctional Facility, Detention Facility, or Critical Infrastructure Facility” or “Sports Venue” at less than 400 feet. ( Id. at 8–9); T EX . G OV ’ T C ODE § 423.0045, § 423.0046. [2] Plaintiffs contend that when combined with Federal Aviation Administration (“FAA”) regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. (Compl., Dkt. 1, at 10–11); see 81 Fed. Reg. 42064, 4206 (June 28, 2016); 14 C.F.R. § 107.1(a). The No-Fly Provisions exempt certain UAV users, including those with a “commercial purpose.” ( Id. at 3); T EX . G OV ’ T C ODE §§ 423.0045(c), 423.0046(c).
Plaintiffs challenge the No-Fly Provisions as unconstitutionally vague and overbroad because the exemption for “commercial purposes” is not defined. (Compl., Dkt. 1, at 10). Plaintiffs allege that “commercial purpose” is often construed to exclude newsgathering. ( Id. ). Plaintiffs allege that this leaves visual journalists unable to determine if they are permitted to use UAVs under the No-Fly Provisions. ( ). Further, Plaintiffs argue that allowing UAVs to be used for commercial purposes but not newsgathering purposes “single[s] out photojournalists for disfavored treatment” and violates the First and Fourteenth Amendments. ( Id. ). Plaintiffs also allege that the No-Fly Provisions violate the Supremacy Clause by impinging on the federal government’s “sole and exclusive authority to regulate the national airspace and aviation safety.” ( Id. ).
C. Parties
Plaintiffs include Joseph Pappalardo (“Pappalardo”) and the National Press Photographers Association (“NPPA”). Pappalardo is a Texas reporter who was previously certified to operate a UAV in the national airspace by the FAA. ( Id. at 4). Pappalardo states that he allowed his certification to expire after the passage of the Chapter 423 provisions due to his inability to legally fly UAVs for newsgathering purposes. ( Id. at 5). The complaint alleged that the Chapter 423 provisions have chilled Pappalardo’s newsgathering because he is concerned about liability under the Chapter 423 provisions. ( Id. at 20).
NPPA is a national organization that represent the interests of visual journalists, including within Texas. (Compl., Dkt. 1, at 4). NPPA members include photographers from print, television, and electronic media, including approximately 300 members in Texas. ( Id. ). NPPA promotes the role of visual journalism as a public service and advocates for the work of its visual journalist members. ( Id. ).
Plaintiffs allege that NPPA members, including those who live or travel to Texas, regularly use UAVs for newsgathering. (Compl., Dkt. 1, at 12). Plaintiffs argue that NPPA members’ newsgathering is chilled by the Chapter 423 provisions. ( Id. ). NPPA usually advises its members on legal issues that face its membership. ( Id. at 13). Since the passage of the Chapter 423 provisions, NPPA has advised its members about the provisions, including researching the law and meeting with lawmakers and communicating with members about compliance. ( ). Plaintiffs contend that NPPA has diverted resources from NPPA’s core activities as a result of the Chapter 423 provisions. ( Id. ).
Plaintiffs also assert the following facts about NPPA member and video journalist Guillermo Calzada (“Calzada”). ( Id. at 15). Plaintiffs state that Calzada has an FAA Part 107 Remote Pilot Certificate, which qualifies him to operate UAVs in the national airspace, and that he owns a registered drone. ( Id. ). On July 24, 2018, Calzada used his UAV to report on an arson fire at an apartment complex in San Marcos. ( Id. ). Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) stopped Calzada and called San Marcos police. ( Id. ). A San Marcos police officer subsequently informed Calzada of the criminal penalties under Chapter 423 if he continued to use his UAV to report on the fire or published any of the captured images. ( Id. ). Plaintiffs allege that in that instance and going forward, Chapter 423 chilled Calzada’s speech by causing him to fear prosecution under Chapter 423 for using UAVs for newsgathering. ( Id. at 16).
Plaintiffs also assert the following facts about NPPA member and news photographer Brandon Wade (“Wade”). ( Id. at 16). Plaintiffs’ state that Wade is qualified to operate UAVs in the national airspace and owns a UAV. ( Id. at 16–17). Plaintiffs describe several instances where the Chapter 423 provisions have affected Wade’s use of UAVs. ( Id. at 17–18). On August 14, 2017, Wade limited his UAV use when he photographed a water treatment plant because he feared that some photographs would violate the Chapter 423 provisions. ( Id. ). Additionally, a local newspaper declined to publish photographs he took of a community garden after it learned Wade had used a UAV to capture the photographs. ( Id. ). Another local newspaper declined Wade’s request to use a UAV for an assignment, causing Wade an estimated $7,200 in lost income. ( Id. 17–18). Additionally, when Wade was hired to photograph a facility that housed immigrant children, Wade limited where he flew his UAV as a result of the Chapter 423 provisions. ( Id. at 18). Plaintiffs assert that the uncertainty created by the Chapter 423 provisions has chilled Wade’s speech. ( ).
Defendants filed a motion to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and to dismiss each of the claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss, Dkt. 19).
II. LEGAL STANDARD
A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter
jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited
jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and
federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am.
,
B. Rule 12(b)(6)
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts
‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”
In re Katrina
Canal Breaches Litig.
,
A claim has facial plausibility “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id
. “The
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
Id
. A court ruling on a 12(b)(6) motion may rely on the
complaint, its proper attachments, “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.”
Dorsey v. Portfolio Equities, Inc.,
III. DISCUSSION
Defendants move to dismiss for lack of jurisdiction under Rule of Civil Procedure 12(b)(1), alleging that Plaintiffs lack standing and that claims against Mau are barred under the Eleventh Amendment. (Mot. Dismiss, Dkt. 19, at 7–16; Reply, Dkt. 26) Defendants further move to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss, Dkt. 19, 17–32). The Court will address each argument in turn.
A. Plaintiffs’ Standing
Under Article III of the Constitution, federal court jurisdiction is limited to cases and
controversies. U.S. Const. art. III, 2, cl. 1;
Raines v. Byrd
,
To establish Article III standing, a plaintiff must demonstrate that she has (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.”
See Lujan
,
Defendants first argue that Pappalardo lacks standing. (Mot. Dismiss, Dkt. 19, at 8).
Defendants argue that Pappalardo has not been injured because he has never been punished for his
use of UAVs. ( ). However, this misstates the burden on Plaintiffs for a First Amendment
preenforcement claim. Plaintiffs need not show that they will be punished, only that the challenged
law has caused Plaintiffs to reasonably self-censor their speech for fear of being punished.
Justice v.
Hosemann
,
For standing in a preenforcement challenge, plaintiffs must allege “an intention to engage in
a course of conduct arguably affected with a constitutional interest, but proscribed” by the statute.
Babbitt v. United Farm Workers Nat’l Union
,
Defendants argue that Pappalardo has not sufficiently demonstrated that the events he chose
not to cover would have been unlawful under the Chapter 423 provisions. (Mot. Dismiss, Dkt. 19, at
9). Plaintiffs agree that in some of the alleged instances where Pappalardo would have used a UAV,
it is unclear whether the Chapter 423 provisions would prohibit UAV use (largely because Plaintiffs
contend the provisions are unconstitutionally vague), but it is at least clear that Chapter 423
prohibits UAVs in some of these instances. (Resp., Dkt. 23, at 8). The Court agrees. The Chapter
423 provisions prohibit the use of UAVs to “capture an image of an individual or privately owned
real property.” T EX . G OV T C ODE § 423.003(a). Pappalardo states that he would have used a UAV
to capture images at gasoline pumps during Hurricane Harvey, homes on fire, and urban sprawl
including privately owned real property. (Compl., Dkt. 1, at 20–21). This is sufficient to show that
Pappalardo’s intended conduct is “arguably proscribed” by Chapter 423. (
See Susan B. Anthony List v.
Driehaus
,
Additionally, Pappalardo has plausibly alleged that his reasonable fear of having the Chapter 423 provisions enforced against him has caused him to cease using his UAV for newsgathering. (Resp., Dkt. 23, at 7; Compl., Dkt. 1, at 20 (“Pappalardo became concerned that he would risk liability for criminal and civil penalties if he continued to use his drone for journalistic purposes. . . . Pappalardo has refrained from using his UAV in Texas for any image capturing for newsgathering purposes.”)). This is sufficient to demonstrate that Pappalardo’s newsgathering activities have been chilled. As a result, Pappalardo has alleged sufficient injury to confer standing to challenge the constitutionality of the Chapter 423 provisions.
Plaintiffs have also plausibly alleged that NPPA has been injured and has standing.
Organizations can establish the first standing element, injury-in-fact, under two theories:
“associational standing” or “organizational standing
.” OCA-Greater Hous. v. Texas
,
Defendants argue that NPPA lacks associational standing. (Mot. Dismiss, Dkt. 19, at 12).
“[A]n association has standing to bring suit on behalf of its members when: [1] its members would
otherwise have standing to sue in their own right; [2] the interests it seeks to protect are germane to
the organization’s purpose; and [3] neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”
United Food & Commercial Workers Union Local
751 v. Brown Grp., Inc.
,
First, Defendants argue that NPPA members Calzada and Wade lack standing to sue in their own right for the same reasons they argue Pappalardo lacks standing. (Mot. Dismiss, Dkt. 19, at 12). However, like Pappalardo, Plaintiffs have sufficiently alleged that Calzada and Wade would have standing because the Chapter 423 provisions allegedly chilled them from participating in First Amendment protected activity under the Chapter 423 provisions. Plaintiffs plausibly pled that Wade, an NPPA member, has self-censored his UAV use out of fear of liability under the Chapter 423 provisions, chilling his newsgathering activities. (Compl., Dkt. 1, at 17–18 (“Out of fear of violating Chapter 423, Mr. Wade had to limit where he flew his drone, which hampered his ability to capture newsworthy images.”). Going even further, Plaintiffs have demonstrated an instance of enforcement of the Chapter 423 provisions against Calzada, another NPPA member. On July 24, 2018, Calzada was using his UAV to report on an apartment complex fire when ATF Agents stopped him and a San Marcos police officer subsequently informed him of the criminal penalties under the Chapter 423 provisions if he continued to use his UAV or published any of the captured images. (Compl., Dkt. 1, at 16). Plaintiffs have plausibly pled that this enforcement incident chilled Calzada’s newsgathering activities going forward. ( at 16). As a result, NPPA members Calzada and Wade would plausibly have standing in their own right, meeting the first requirement of associational standing.
Second, regarding associational standing, Defendants argue that NPPA has not sufficiently alleged the interests at stake are germane to NPPA’s purpose. [4] (Mot. Dismiss, Dkt. 19, at 13–14). NPPA members’ alleged injuries stem from First Amendment restrictions, which is germane to NPPA’s purpose to “promote ethical journalism and work to advocate for and improve the legal landscape for visual journalists, particularly in the areas of First Amendment and copyright protection.” (Compl., Dkt. 1, at 14).
Regarding the third prong of associational standing, Defendants argue that NPPA members’
involvement would be required to resolve “fact intensive” inquiries related to the claims. (Mot.
Dismiss, Dkt. 19, at 13–14). However, because this is a facial challenge to the Chapter 423
provisions, it is unlikely that the proceedings will be fact intensive or that NPPA’s individual
members will be required to participate in this lawsuit.
See United Food & Commercial Workers Union
Local 751
,
Plaintiffs have also plausibly pled that NPPA has organizational standing. “Organizational
standing” does not depend on the standing of the organization’s members. Instead, an organization
can establish standing in its own if it “meets the same standing test that applies to individuals.”
OCA-Greater Houston
,
Plaintiffs have adequately pled that NPPA has been injured because it has diverted resources
to counter the effects of the Chapter 423 provisions on its members. NPPA has pled that it advised
its members about the legal implications of using UAVs under the Chapter 423 provisions and
researched First Amendment protections in the event a member is “charged criminally or sued
civilly based on a violation of Chapter 423.” (Compl., Dkt. 1, at 14). NPPA alleges that these actions
have caused it to divert resources from its core activities, such as “advocat[ing] for and improving
the legal landscape for visual journalists.” ( ). Defendants claim that NPPA has not provided
enough evidence of diverted resources, such as “man-hours expended” or specific activities
resources were diverted away from. (Mot. Dismiss, Dkt. 19, at 16). However, “the injury alleged as
an Article III injury-in-fact need not be substantial; it need not measure more than an identifiable
trifle.”
OCA-Greater Houston v. Texas
,
There is organizational standing even if NPPA is diverting resources to educate its members
about issues related to its core mission of First Amendment protections for journalists.
OCA-Greater
Houston
,
Turning to the other requirements for standing, Defendants have argued that Pappalardo and NPPA’s alleged injuries are not traceable to Defendants because they lack prosecutorial authority or have not threatened to use their prosecutorial authority. (Mot. Dismiss, Dkt. 19, at 10; Reply, Dkt. 26, at 4). However, Plaintiffs plausibly pled that McCraw is “responsib[le] for the conduct of the peace officers who enforce the criminal provisions of Chapter 423,” and that Joy is “[responsib[le] as a peace officer to enforce the criminal provisions of Chapter 423 and . . . for the conduct of the peace officers who enforce the criminal provisions of Chapter 423.” (Compl., Dkt. 1, at 5). Further, Defendants concede that Mau has prosecutorial authority. (Mot. Dismiss, Dkt. 19, at 9). Defendants’ connection to the enforcement of Chapter 423, as pled by Plaintiffs, means that an injunction on Defendants and the peace officers they supervise, in addition to a declarative judgment, would redress Plaintiffs’ injury.
Defendants similarly argue that Pappalardo and NPPA’s claimed injuries are not redressable
by Defendants because Defendants have not indicated they would enforce the Chapter 423
provisions against Pappalardo or NPPA members. (Mot. Dismiss, Dkt. 19, at 9; Reply, Dkt. 26, at
3–4). However, because the Chapter 423 provisions themselves are chilling Plaintiffs’ actions, and
enjoining enforcement of the provisions would stop Plaintiffs’ self-censorship, the redressability
requirement is met.
See Ctr. for Individual Freedom
,
B. Eleventh Amendment
Mau argues that Plaintiffs’ claims against him are barred under the Eleventh Amendment.
(Reply, Dkt. 26). The Eleventh Amendment typically deprives federal courts of jurisdiction over
“suits against a state, a state agency, or a state official in his official capacity unless that state has
waived its sovereign immunity or Congress has clearly abrogated it.”
Moore v. La. Bd. of Elementary &
Secondary Educ.
,
“For the [
Ex parte Young
] exception to apply, the state official, ‘by virtue of his office,’ must
have ‘some connection with the enforcement of the [challenged] act, or else [the suit] is merely
making him a party as a representative of the state, and thereby attempting to make the state a
party.’”
City of Austin v. Paxton
,
While “[t]he precise scope of the ‘some connection’ requirement is still unsettled,” the Fifth
Circuit has stated that “it is not enough that the official have a ‘
general
duty to see that the laws of the
state are implemented.’”
Texas Democratic Party v. Abbott
,
Mau argues that the
Ex parte Young
exception does not apply to him because he lacks a
connection to the enforcement of the Chapter 423 provisions. (Reply, Dkt. 26, at 2 (citing
City of
Austin
,
Mau further argues that Plaintiffs have not even shown a willingness for a “scintilla of
enforcement” by Mau.
See City of Austin
,
C. Surveillance Provisions
Plaintiffs’ first claim is that the Surveillance Provisions, Sections 423.002, 423.003, 423.004, and 423.006, prohibit conduct protected by the First Amendment. (Compl., Dkt. 1, at 22). The Surveillance Provisions declare it unlawful to “capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property contained in the image.” T EX . G OV T C ODE § 423.003(a). Plaintiffs contend that the Surveillance Provisions chill them from engaging in protected First Amendment activity, including “capturing, disclosing, displaying, and distributing ‘images’”; impermissibly regulate speech on the basis of content and speaker; and are overbroad because they do not define “surveillance”. ( Id. at 23–24).
1. Content-based restrictions
In response, Defendants argue that Sections 423.002, and 423.006 do not individually implicate the First Amendment. [6] (Mot. Dismiss, Dkt. 19, at 19). Defendants argue that Section 423.002 only outlines the conduct that is not prohibited by Chapter 423, and therefore does not implicate the First Amendment. ( ). However, Section 423.002 outlines the exemptions allowed for certain individuals and purposes, which goes to the heart of Plaintiffs’ First Amendment claim that the provisions are being selectively applied to some speakers, including to journalists. T EX . G OV ’ T C ODE § 423.002.
Defendants similarly argue that because Section 423.006 only provides for a private cause of
action, there is no government restriction on speech as required for a violation of the First
Amendment. (Mot. Dismiss, Dkt. 19, at 19); T EX . G OV T C ODE § 423.006(a). The constitutionality
of statutes imposing civil liability on private parties, however, may be challenged.
See, e.g.
,
Barr v. Am.
Ass’n of Political Consultants, Inc
,
Defendants further argue that the Surveillance Provisions are not regulating inherently
expressive conduct. (Mot. Dismiss, Dkt. 19, at 20 (citing
United States v. O’Brien
,
Content-based restrictions on First Amendment protected activity “are presumptively
unconstitutional and may be justified only if the government proves that they are narrowly tailored
to serve compelling state interests.”
Reed v. Town of Gilbert
,
Plaintiffs have sufficiently pled that the Surveillance Provisions apply speaker-based
discrimination and are thus content-based.
[7]
Plaintiffs argue that because the Surveillance Provisions
exempt certain speakers from liability, other speakers such as journalists face liability because of the
type of speaker they are. (Resp., Dkt. 23, at 20);
see
T EX . G OV ’ T C ODE § 423.002(a). Certain
individuals are permitted to capture UAV images under the Surveillance Provisions, such as
professors, students, professional engineers, and insurance company employees. T EX . G OV ’ T C ODE § 423.002. Defendants argue that these exemptions are not speaker-based discrimination because the
same person could be permitted to use a UAV for an academic purpose, but not for
newsgathering—regardless of that person’s identity. (Reply, Dkt. 25, at 5). The Court disagrees that
Defendants’ distinction means the Surveillance Provisions are not speaker-based. The regulation is
not speaker-neutral just because one person may simultaneously fall into multiple categories of
speakers under the Surveillance Provisions. Instead, the Surveillance Provisions are discriminating
based on the type of speaker someone is at the time they are using a UAV because of the exceptions
listed in Section 423.002. This goes beyond “an incidental effect on some speakers,” as Defendants
argue. (Reply, Dkt. 25, at 5 (quoting
Ward v. Rock Against Racism
,
Even assuming that Defendants will demonstrate a compelling government interest, Plaintiffs have plausibly argued that the Surveillance Provisions are not narrowly tailored to protect this interest in light of the numerous exceptions included in the Surveillance Provisions. See T EX . G OV ’ T C ODE § 423.002. Plaintiffs question why government interests in privacy and public safety are implicated for journalists using UAVs, but not for other individuals exempted under the Surveillance Provisions. (Resp., Dkt. 23, at 22). The Court agrees that some of these exceptions leave open the question of whether the Surveillance Provisions are narrowly tailored. As a result, Plaintiffs’ complaint has plausibly alleged that the Surveillance Provisions impermissibly impose content-based restrictions.
2. Surveillance Provisions Vagueness
Plaintiffs assert that the Surveillance Provisions are impermissibly vague because they do not
define the term “surveillance.” (Compl., Dkt. 1, at 25);
see
T EX . G OV T C ODE § 423.003(a). A more
stringent vagueness test applies where a law “interferes with the right of free speech.”
Hoffman
Estates v. Flipside
,
Plaintiffs argue that because an ordinary person could not define “surveillance,” Plaintiffs are uncertain about what activity is prohibited by the Surveillance Provisions, as are law enforcement and the judiciary. (Compl., Dkt. 1, at 25). Defendants attempt to use a dictionary definition used by Plaintiffs to demonstrate that “surveillance” has a common definition. (Compl., Dkt. 1, at 6; Mot. Dismiss, Dkt. 19, at 26). However, Plaintiffs effectively counter this by providing multiple dictionary definitions where the definition of surveillance is broad enough that the application of the Surveillance Provisions is unclear. ( See Resp., Dkt. 23, at 22–23). For instance, “[c]lose observation or listening of a person or place in the hope of gathering evidence,” (Compl., Dkt. 1, at 6 (citing B LACK S L AW D ICTIONARY (10th ed. 2014))), might include newsgathering in an understanding of “observation or listening” but not within the requirement to “gather evidence.” ( ).
Defendants argue that statutes need not provide “perfect clarity” or “precise guidance.”
(Mot. Dismiss, Dkt. 19, at 26 (citing
Minn. Voters All. v. Mansky
,
3. Surveillance Provisions Overbreadth
Under the “First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits
a substantial amount of protected speech.”
United States v. Williams
,
Defendants argue that very little protected expressive activity is regulated by the Surveillance
Provisions. (Mot. Dismiss, Dkt. 19, at 24; Reply, Dkt. 25, at 7). However, as discussed above,
Plaintiffs adequately plead that “surveillance” is impermissibly vague, indicating that the scope of
what the Surveillance Provisions prohibit is not itself clear.
See Williams
,
D. No-Fly Provisions
The No-Fly Provisions prohibit “operat[ing] an unmanned aircraft,” either “over a correctional facility, detention facility, or critical infrastructure facility,” T EX . G OV ’ T C ODE § 423.0045(b)(1), or “over a sports venue,” id. § 423.0046(b). The No-Fly Provisions further prohibit drones from “mak[ing] contact with” such a facility or to allow it “to come within a distance . . . that is close enough to interfere with the operations of or cause a disturbance to the facility.” Id. § 423.0045(b)(2)-(3).
1. No-Fly Provisions Constitutionality
Plaintiffs plead that the No-Fly Provisions violate the First Amendment as an
unconstitutional restraint on expressive conduct. (Compl., Dkt. 1, at 26). In the alternative, Plaintiffs
also plead that the No-Fly Provisions impose an incidental restraint on protected conduct, in which
case intermediate scrutiny applies. (Reply, Dkt. 23, at 32 (citing
United States v. O’Brien
,
Even assuming the No-Fly Provisions further an important government interest and that interest is unrelated to the suppression of free expression, which the parties dispute, Plaintiffs have adequately pled the No-Fly Provisions are not narrowly tailored. While Defendants have pointed to government interests that may be sufficient to meet the first requirement of an important or substantial government interest, (Mot. Dismiss, Dkt. 19, at 27–28), Plaintiffs allege that the exemptions for commercial interests in the No-Fly Provision undercut the purported importance of these government interests. (Resp., Dkt. 23, at 34); T EX . G OV T C ODE §§ 423.0045(c), 423.0046(c). The Court agrees that Plaintiffs have plausibly raised questions as to how these government interests could be threatened by newsgathering but not by commercial activities. ( Cf. Reply, Dkt. 25, at 8 (explaining only that the provisions’ exceptions “allow drone activity where it does not undermine the purpose of the statute”)). This inconsistent prohibition of UAVs indicates that the No-Fly Provisions are restricting more speech than necessary to achieve the government’s alleged interests.
Plaintiffs have also plausibly pled that the No-Fly Provisions are vague and overbroad because “commercial purpose” is not defined in the exemptions from the No-Fly Provisions and is often construed to exclude newsgathering. (Compl., Dkt. 1, at 10, 28–29). Plaintiffs cite multiple dictionary definitions of “commercial” that do not provide clear guidance on whether photojournalism is included. (Resp., Dkt. 23, at 35–36). For instance, “the buying and selling of goods,” B LACK S L AW D ICTIONARY (11 th ed. 2019), seems less likely to include photojournalism. (Resp., Dkt. 23, at 35–36). Whereas Plaintiffs assert that other dictionaries define “commercial” to mean any moneymaking enterprise, seemingly more likely to include photojournalism within the definition. ( (citing C AMBRIDGE A CADEMIC C ONTENT D ICTIONARY , M AC M ILLAN D ICTIONARY )).
Defendants dismiss these interpretations as “hypertechnical parsing of various dictionaries” and once again argue that “ordinary persons are perfectly capable of understanding the meaning of the term ‘commercial purpose,’” (Mot. Dismiss, Dkt. 19, at 29; Reply, Dkt. 25, at 8), but at no point provide any guidance as to how the Court should interpret “commercial purpose.” Defendants assert that whether Plaintiffs’ conduct is prohibited is a factual inquiry. (Mot. Dismiss, Dkt. 19, at 29). However, even if a factual inquiry determined that Plaintiffs’ conduct was for journalistic purposes, Plaintiffs have sufficiently pled that there would be an unanswered legal question about whether the conduct was prohibited by the No-Fly Provisions. As a result, Plaintiffs have plausibly pled the No-Fly Provisions violate the First Amendment.
2. No-Fly Provisions Preemption
Plaintiffs additionally plead that the No-Fly Provisions violate the Supremacy Clause because
the federal government has exclusive authority to regulating the national airspace and aviation safety.
(Compl., Dkt. 1, at 29 (citing
Burbank v. Lockheed Air Terminal Inc.
,
Field preemption exists when “Congress has forbidden the State to take action in the field
that the federal statute pre-empts.”
Oneok, Inc. v. Learjet, Inc.
,
With regard to field preemption, Plaintiffs point to six other Circuit Courts that have
concluded the FAA preempts the entire field of aviation safety regulation. (Resp., Dkt. 23, at 27)
(citing cases from the 3rd Circuit, 6th Circuit, 9th Circuit, 10th Circuit)). While the Fifth Circuit has
not held that the FAA preempts the entire field of aviation safety,
Monroe v. Cessna Aircraft Co.
, 417 F.
Supp. 2d 824, 828 (E.D. Tex. 2006), it has held that certain state laws are preempted by the FAA.
Witty
,
The “key question is . . . at what point the state regulation sufficiently interferes with federal
regulation that it should be deemed pre-empted.”
Prokaski v. Frontier Airlines, Inc.
, No. 12-CA-512-
LY,
In this case, federal law has not completely preempted the field regarding UAVs flying over
certain buildings and structures.
See City of El Cenizo, Texas v. Texas
,
Plaintiffs’ arguments for field preemption center on the fact that there are federal regulations
in place governing issues related to the No-Fly Provisions.
See
Pub. L. No. 115–254 § 369, 132 Stat.
3186, 3311 (2018). Plaintiffs plead that the federal government has “already identified categories of
critical infrastructure and directed the FAA to establish processes to prohibit or restrict the
operation of drones over such infrastructure. (Compl., Dkt. 1, at 29). Plaintiffs argue that federal
regulations already govern where UAVs can safely fly without threating public safety or
infrastructure, allowing UAVs to fly near critical infrastructure under 400 feet. (Resp., Dkt. 23, at
28). Plaintiffs contend that the No-Fly Provisions interfere with Congress’s judgment about the
“balance between safety and efficiency, and the protection of persons on the ground.”
Lockheed Air
Terminal
,
However, Plaintiffs have not adequately demonstrated that Congress intended to prohibit states from passing additional regulations related to UAVs, even ones related to existing FAA regulations. Instead, parties agree that a state may “promulgate drone regulations consistent with its traditional police powers, such as to protect privacy or prevent trespass or voyeurism.” (Compl., Dkt. 1, at 29–30; Mot. Dismiss, Dkt. 19, at 32). Overall, Plaintiffs’ claims center on whether UAVs can be used in certain areas for newsgathering and have not demonstrated that the No-Fly Provisions are intended to affect, or indeed do affect, aviation safety in the airspace. Thus, the Court agrees that these regulations are related to the State’s police powers, and Plaintiffs have not shown that the No-Fly Provisions fall into an entirely preempted field. However, whether these regulations are constitutional or valid exercises of these police powers is another matter, as discussed above.
Additionally, even without field preemption, there can be conflict preemption. See Singer , 284 F. Supp. 3d at 130 (“The FAA’s guidance . . . hints that whether parallel regulations are enforceable depends on the principles of conflict preemption.”). Plaintiffs argue there is obstacle preemption, a form of conflict preemption, because the No-Fly Provisions interfere with the federal goals of 1) national uniformity of air safety regulations and 2) safely integrating drone use into the national airspace. (Resp., Dkt. 23, at 30).
First, Plaintiffs argue that the No-Fly Provisions conflict with national regulations because
they interfere with national uniformity of air safety regulations. ( ). Plaintiffs further clarify that
while states are not always prohibited from regulating airspace, regulations “on flight altitude [or]
flight paths . . . [and] regulation[s] of the navigable airspace” are particularly likely to be preempted.
(Resp., Dkt. 23, at 30).
[8]
However, Congress enacted the Federal Aviation Act “in response to a
series of ‘fatal air crashes between civil and military aircraft operating under separate flight rules.’”
(Amicus, Dkt. 42, at 4–5 (citing
Abdullah v. Am. Airlines, Inc.
,
Second, Plaintiffs point to Congress’s direction that the Secretary of Transportation “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system,” (Resp., Dkt. 23, at 30 (citing 49 U.S.C. § 44802(a)(1))). Plaintiffs and amicus rely on Singer to argue that the No-Fly Provisions interfere with this goal of a comprehensive plan for UAVs. In Singer , a Massachusetts District Court found conflict preemption where regulations prohibited UAV flight below 400 feet over all private and public land. Singer , 284 F. Supp. 3d at 131–33. The court in Singer found that this “constitute[d] a wholesale ban on drone use in [the city],” which “thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.” at 132. The No-Fly Provisions in this case are not regulating such a broad area of Texas airspace, but is instead only certain structures. See T EX . G OV T C ODE §§ 423.0045, 423.0046. Although the No-Fly Provisions prohibit UAVs in more areas than national regulations, Plaintiffs have not adequately pled that these prohibitions are so broad as to interfere with the goal of integrating UAVs into the national airspace, especially if the FAA “contemplated co-regulation of drones [with states] to a certain extent.” Singer , 284 F. Supp. 3d at 132 (citing 81 Fed. Reg. 42063 § (III)(K)(6)).
Plaintiffs have not sufficiently pled that the No-Fly Provisions conflict with federal goals for uniform UAV regulation or to integrate UAVs into the national airspace. As a result, the No-Fly Provisions neither regulate a field that is entirely preempted by federal regulation nor conflict with federal regulation.
III. CONCLUSION
Accordingly, IT IS ORDERED that Defendants’ Motion to Dismiss, (Dkt. 19), is GRANTED IN PART and DENIED IN PART . The Court DISMISSES WITH PREJUDICE Plaintiffs’ preemption claim. Defendants motion to dismiss is DENIED as to all other claims.
SIGNED on November 30, 2020.
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Notes
[1] In his reply, Mau adopted all arguments made by McCraw and Joy in their reply, in addition to asserting separate arguments. (Reply, Dkt. 26, at 1).
[2] Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. T EX . G OV ’ T C ODE § 423.0045(a), § 423.0045(a). In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. Id. In 2017, amendments also extended the No-Fly Provisions beyond critical infrastructure facilities to the use of drones over a “correctional facility” “detention facility,” or “sports venue,” which includes 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. T EX . G OV T C ODE § 423.0045, § 423.0046; 2017 Tex. Sess. Law Serv. Ch. 1010 (H.B. 1424) (Vernon’s).
[3] Plaintiffs also assert that Plaintiff Texas Press Association has standing, but do not rely on this in response to Defendants’ motion to dismiss. ( See Resp., Dkt. 23, at 3 n.2).
[4] Defendants make this argument with regard to both organizational Plaintiffs, but “particularly with respect
to TPA.” (Mot. Dismiss, Dkt. 19, at 13–14). However, Plaintiffs do not rely on TPA’s standing to overcome
Defendants’ motion to dismiss, and they need not. (
See
Resp., Dkt. 23, at 3 n.2);
Rumsfeld
,
[5]
[6] Defendants do not make this argument about Section 423.004, which criminalizes the possession, disclosure, display, distribution, or other use of images by a person who captured those images in violation of Section 423.003.
[7] Plaintiffs also argue that the Surveillance Provisions are content-based because they include exemptions based on the purpose of the images captured with a UAV, such as “professional or scholarly research,” operations and maintenance of utility or telecommunications facilities,” and “mapping.” (Resp., Dkt. 23, at 20); T EX . G OV T C ODE § 423.002. Defendants argue that because the same image can be prohibited or allowed under the Surveillance Provisions based on how it is being used, the content of the image is not the discriminating factor. (Reply, Dkt. 25, at 5). Because there is also speaker-based discrimination requiring the application of strict scrutiny, the Court does not reach this issue.
[8] See Office of the Chief Counsel, Fed. Aviation Admin., State and Local Regulation of Unmanned Aircraft Systems (UAS): Fact Sheet 3 (Dec. 17, 2015).