NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; TEXAS PRESS ASSOCIATION; JOSEPH PAPPALARDO v. STEVEN MCCRAW, in his official capacity as Director of the Texas Department of Public Safety; DWIGHT MATHIS, in his official capacity as Chief of the Texas Highway Patrol; KELLY HIGGINS, in his official capacity as District Attorney of Hays County, Texas
No. 22-50337
United States Court of Appeals for the Fifth Circuit
October 23, 2023
FILED October 23, 2023 Lyle W. Cayce Clerk
Before CLEMENT, ELROD, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
Chapter 423 of the Texas Government Code governs the operation of unmanned aerial vehicles—drones—in Texas airspace. In this case, the plaintiffs claim a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent. They also assert a constitutional right to fly drones at low altitudes over critical infrastructure facilities like prisons and large sports venues.
I
A
Roughly a decade ago, the Texas Legislature enacted Chapter 423 as part of its efforts to regulate the use of drones in Texas airspace.1 Two sets of Chapter 423‘s provisions are at issue in this lawsuit:
First, we have what the parties have nicknamed the “Surveillance” provisions. These provisions make it unlawful to use a drone to “capture an image” of someone or private property with an intent to surveil the subject of the image:
A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.2
Depending on how you count them, there are at least twenty-one statutory exemptions to the Surveillance Provisions.3 For instance, law enforcement and the military are allowed to conduct aerial surveillance using drones.4 So can professors and students, if they do it for an “academic purpose.”5 It‘s also fine to use a drone to capture images from under eight feet—roughly the height of someone holding a camera above his or her head.6 Importantly—it is lawful to use a drone to capture images of public property or persons on public property,7 and one can always take drone images with the consent of the subject.8 What is not among the twenty-one exceptions, however, is a specific exemption for the press.
Second, we have what the parties have dubbed the “No-Fly Provisions.” The No-Fly provisions make it illegal to fly a drone above sensitive sites like critical infrastructure facilities, prisons, and large sports venues:
A person commits an offense if the person intentionally or knowingly:
(1) operates an unmanned aircraft over a critical infrastructure facility and the unmanned aircraft is not higher than 400 feet above ground level;
(2) allows an unmanned aircraft to make contact with a critical infrastructure facility, including any person or object on the premises of or within the facility; or
(3) allows an unmanned aircraft to come within a distance of a critical infrastructure
facility that is close enough to interfere with the operations of or cause a disturbance to the facility.9
Critical infrastructure facilities include airports, petroleum refineries, power generators, and military installations, so long as they are enclosed by a fence or barrier, or otherwise indicate that entry is forbidden.10 There is a nearly identical No-Fly provision barring flights directly above correctional facilities and detention centers,11 and one that applies to large sports venues:
A person commits an offense if the person intentionally or knowingly operates an unmanned aircraft over a sports venue and the unmanned aircraft is not higher than 400 feet above ground level.12
Just like the Surveillance provisions, the No-Fly provisions contain several exemptions. Most relevant here is one that allows a drone operator to violate the No-Fly provisions “for a commercial purpose” so long as the operator complies with the applicable Federal Aviation Administration rules and authorizations.13 Again, though: there is no specific exemption for the press.
Violating the Surveillance or the No-Fly provisions is a criminal offense under Texas law,14 and it also subjects the violator to the possibility of civil liability.15
B
The plaintiffs in this case are one drone-owning journalist and two media-related organizations (Plaintiffs).
Joseph Pappalardo is a self-employed journalist. He owns a small aerial drone and is qualified to operate the drone in the national airspace. He is “concerned that using a [drone] for journalistic purposes would put [him] at risk of criminal penalties and subject [him] to liability in a civil lawsuit” in Texas. In 2017, he was informed by one of his “corporate bosses” at the time that, should he take images in violation of Chapter 423, the company would not pay for a legal defense in any resulting court proceedings. After that conversation, he has refrained from using a drone for image capturing in Texas “due to [his] concern about possibly violating Chapter 423.” As a result, he has missed out on opportunities to take aerial photographs to include in his reporting, including stories on Hurricane Harvey, house fires, storm damage, removal of homeless encampments, and illegal poaching in urban areas. He believes that Chapter 423 prevents him from being able to do “complete reporting that journalists in other
National Press Photographers Association (NPPA) is a national association that represents the interests of visual journalists, including news photographers in Texas. According to NPPA, drones provide its members with a cheap and safe alternative to renting a helicopter to obtain aerial images. Two NPPA members, both photojournalists, are especially relevant to this appeal.
The first is Guillermo Calzada. In July 2018, he flew his drone near the site of an apartment fire in San Marcos, Texas, to capture images for his employer, the San Antonio Express-News. An unnamed federal agent at the scene approached him and told him that he was interfering with a federal investigation. The agent then called the San Marcos police. An unnamed police officer arrived and told Calzada that he had violated state law by taking pictures with his drone and that, if he published them, he would be violating the law again. The officer also told Calzada that she wouldn‘t cite him for the incident.
The second is Brandon Wade. He is a freelancer who, though qualified to fly a drone, does not use one for journalism due to the risk of enforcement. He believes the threat of enforcement is costing him “thousands of dollars” because one of his clients, The Dallas Morning News, has not given him any drone-photography assignments. In 2018, another client, the Fort Worth Star-Telegram, offered Wade an assignment to document the construction of a new ballpark for the Texas Rangers. Although the Rangers refused to grant permission to Wade‘s client, the Rangers did hire Wade to film the construction for them for public-relations purposes. As a result, Wade says, the Rangers own the copyright to the footage, and he cannot share it with the media. Wade “lost thousands of dollars” due to the Rangers’ refusal.
The other organizational plaintiff is the Texas Press Association (TPA). It exists to promote the welfare of Texas newspapers, encourage higher standards of journalism, and advocate for First Amendment liberties. TPA represents approximately 400 member newspapers, and its members include The Dallas Morning News, the San Antonio Express-News, and the Fort Worth Star-Telegram. Some of TPA‘s member newspapers have enacted policies avoiding the use of drone photography in response to Chapter 423‘s restrictions. Its members would be able to more cheaply and safely cover the news if drone photography were permitted.
The defendants in this case are high-ranking state- and county-level officials: two Texas heads of law-enforcement agencies and one county district attorney (Defendants).
Steve McCraw is the Director of the Texas Department of Public Safety (DPS). As the “head of the Department of Public Safety,” he is “the highest law enforcement official in the state of Texas.”16 The other state official is Dwight Mathis. He is the Chief of the Texas Highway Patrol (THP).17 The record evidence indicates that, while DPS has issued warnings and citations to drone operators on a few occasions, neither DPS nor THP has ever arrested
Kelly Higgins is the district attorney of Hays County, Texas.18 Unlike the state defendants, the Hays County district attorney‘s office has initiated at least one prosecution “for drone-related activities.” The record evidence indicates that this prosecution, which resulted in a deferred disposition, was for violating Chapter 423. Though it is not in the record, at oral argument Higgins‘s counsel indicated that the prosecution did not involve members of the press but instead an individual who surreptitiously photographed his neighbor.
C
Plaintiffs filed this pre-enforcement facial constitutional challenge to Chapter 423 against Defendants, seeking to enjoin them from enforcing the Surveillance and No-Fly provisions. Plaintiffs asserted five claims, arguing that the Surveillance provisions violate the First Amendment and the Due Process Clause of the Fourteenth Amendment, and that the No-Fly provisions violate the First Amendment, Due Process, and federal preemption principles. In essence, their position is that Chapter 423 unlawfully infringes on their right to film and gather news, that the statutory prohibitions are so vague that they violate Due Process, and that Texas has no authority to promulgate drone regulations because the federal government has expressly preempted all state and local drone regulations.
The district court ruled on all five claims. In 2020, the court dismissed Plaintiffs’ claim that the No-Fly provisions are preempted by federal law.19 In 2022, ruling on the parties’ cross motions for summary judgment, the court entered a final judgment favoring Plaintiffs on all of their remaining theories and enjoined Defendants and all of their subordinates from enforcing Chapter 423.20 The court held that both challenged provisions violate both the First Amendment and Due Process.
Both sides appealed. Defendants argue that Plaintiffs’ claims fail on standing, sovereign immunity, and merits grounds. Plaintiffs, on the other hand, say the district court should have enjoined enforcement of Chapter 423 on the additional ground that federal law preempts the entire field of aviation safety.
II
We review summary-judgment rulings de novo, applying the same standard as the district court.21 “Cross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.”22 Legal issues, including jurisdictional issues like standing and sovereign immunity, are reviewed de novo.23
Our discussion proceeds as follows: (A) Article III standing; (B) the Ex parte Young exception to sovereign immunity;
A
Defendants first argue that Plaintiffs lack standing to bring this pre-enforcement challenge to Chapter 423 against them. We agree—in part.
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.‘”25 “The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.”26
To show associational standing, NPPA and TPA must show that “(a) its members would otherwise have standing to sue in their own right; (b) the interests [each entity] seeks to protect are germane to [each] organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”27 It is undisputed that the second two elements are met, so the only question is the first: whether the individual members would have standing in their own right.28
For the individual members and Pappalardo “[t]o have standing, [they] must (1) have suffered an injury in fact, (2) that is fairly traceable to the challenged action of the defendant, and (3) that will likely be redressed by a favorable decision.”29 Primarily at issue here are the injury and traceability elements. As the parties invoking standing, Plaintiffs “bear the burden to demonstrate standing for each claim they seek to press.”30
We address injury first.
1
“An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical. An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.”31
The parties disagree on whether Plaintiffs have carried their burden to show an injury for standing purposes. After all, no Plaintiff has ever been arrested or prosecuted for violating Chapter 423. Defendants McCraw and Mathis produced evidence showing that they have not arrested or prosecuted anybody for violating Chapter 423. And while the Hays County District Attorney‘s office prosecuted a claim under Chapter 423, that case resulted in a
Plaintiffs lack standing to bring their Due Process claims. They have never been arrested or prosecuted for violating Chapter 423. And the available evidence suggests that Defendants have never enforced Chapter 423 against Plaintiffs (or anybody else). The issue of whether the Surveillance and No-Fly provisions are unlawfully vague in their proscriptions is therefore a mere hypothetical dispute lacking the concreteness and imminence required by Article III.32 In the absence of any imminent or even credible threat of prosecution under Chapter 423, Plaintiffs lack standing to preemptively challenge Chapter 423 under the Due Process Clause.33 We therefore vacate the district court‘s judgment on the Due Process claims.
The First Amendment claims, however, are another matter. This is because “standing rules are relaxed for First Amendment cases so that citizens whose speech might otherwise be chilled by fear of sanction can prospectively seek relief.”34 “In pre-enforcement cases alleging a violation of the First Amendment‘s Free Speech Clause, the Supreme Court has recognized that chilled speech or self-censorship is an injury sufficient to confer standing.”35 In this context, “[a] plaintiff has suffered an injury in fact if he (1) has an ‘intention to engage in a course of conduct arguably affected with a constitutional interest,’ (2) his intended future conduct is ‘arguably . . . proscribed by [the policy in question],’ and (3) ‘the threat of future enforcement of the [challenged policies] is substantial.”36 Unlike in other constitutional contexts, in the speech context, we “may assume a substantial threat of future enforcement absent compelling contrary evidence.”37 “Controlling precedent thus establishes that a chilling of speech because of the mere existence of an allegedly vague or overbroad statute can be sufficient injury to support standing.”38
Here, Plaintiffs have evidence that their use of drones (which they call “speech“)39 was chilled because of Chapter 423. Pappalardo, for instance, violated Chapter 423 but stopped using a drone after his boss told him he would not be provided a legal defense for violating the law. NPPA member
around. NPPA member and freelance photojournalist Wade testified that he “often [doesn‘t] use [his] drone because of the risk of enforcement.” As a result, he has missed money-making opportunities with The Dallas Morning News and the Texas Rangers because of his (and their) unwillingness to violate Chapter 423. TPA member The Dallas Morning News enacted policies prohibiting its photographers from using drone photography. Finally, in their briefs, Plaintiffs represent to us that, after the district court enjoined the enforcement of Chapter 423 in this litigation, The Dallas Morning News reversed its no-drone policy, and Pappalardo and another NPPA member began to use drones to capture images for news purposes.
The above facts are sufficient to show chill. Plaintiffs have restricted their use of drones for newsgathering purposes due to the threat of Chapter 423‘s enforcement, which would open them up to criminal and civil liability.40 The facts speak for themselves. We are therefore justified in our conclusion that a substantial threat of future enforcement exists absent “compelling contrary evidence.”41
There‘s more, though. We highlight the monetary injury NPPA member Wade suffered due to his clients’ compliance with Chapter 423. In KVUE, Inc. v. Moore, we found First Amendment standing when a plaintiff news organization “offered evidence that it suffered actual monetary losses during the time it obeyed the law and that it has in fact violated the statute” upon the challenged law‘s being enjoined.42 Here, the evidence confirms that photojournalists like Wade “suffer[] actual monetary losses during the time [they] obey[] the law,” and Plaintiffs represent that they have “violated the
statute” upon its enjoinment.43 Our precedent thus holds that they may file suit to challenge Chapter 423 on First Amendment grounds.
In response, Defendants stress that they have never enforced Chapter 423 and that Plaintiffs’ chill is therefore a subjective self-chill, detached from any objective likelihood of the law‘s enforcement. But their argument does not overcome our precedent, nor does their theory match the evidence here—photojournalists and press organizations are restricting drone photography, to their financial detriment, out of fear of Chapter 423. “That the statute has not been enforced and that there is no certainty that it will be does not establish the lack of a case or controversy.”44 This is particularly so when, as here, “the State has not disavowed any intention” of invoking the law against Plaintiffs.45 While Defendants’ point is well taken, it fails in the First Amendment context.
Defendants also argue that Calzada‘s encounter with the San Marcos police in 2018 is legally insufficient to support standing to seek prospective injunctive relief under City of Los Angeles v. Lyons, which held that a single chokehold incident is not enough to confer standing to seek prospective
often “good evidence” that the likelihood of a future prosecution is not “chimerical.”48
In sum, the injury-in-fact element is satisfied by Plaintiffs’ evidence of their chilled drone usage—including lost financial opportunities and their conduct after Chapter 423 was enjoined.
On to traceability.
2
Even if Plaintiffs suffered an injury, Defendants argue that such injury is not fairly traceable to their conduct. After all, Defendants have never enforced Chapter 423. Again, we must disagree—with one small exception.
To establish traceability, Plaintiffs must show “a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.”49
Traceability is satisfied with respect to McCraw and Mathis. DPS is required to “enforce the laws protecting the public safety.”50 Any chill from the threat of enforcing Chapter 423 is thus fairly traceable to McCraw, as head of DPS. Indeed, we have on more than one occasion found litigants to have standing to sue Director McCraw in federal district court when Texas statutes or DPS are alleged to have violated the federal Constitution.51 The
Highway Patrol, too, has statewide law-enforcement and arrest authority.52 As the person in charge of the Texas Highway Patrol, Chief Mathis is thus a proper defendant as well. Neither Director McCraw nor Chief Mathis denies that they have the authority to enforce Chapter 423. Plaintiffs’ chilled “speech” is thus fairly traceable to those who would arrest them for violating Chapter 423.53 Calzada, for example, violates the statute only when law-enforcement agents are not around. Therefore, Plaintiffs’ chill is fairly traceable to these defendants.
We therefore conclude that Plaintiffs have standing to bring their First Amendment claims—though not their Due Process claims—against all three Defendants. With one exception: Plaintiffs can‘t sue Defendants to enjoin enforcement of Chapter 423‘s civil penalties because Defendants do not enforce those provisions—only private individuals harmed by a violation of Chapter 423 may sue to enforce the civil penalties.56 The district court lacked jurisdiction to order Defendants not to enforce § 423.006, and its order on that front must be vacated.
Satisfied on standing, at least partly, we turn to the next jurisdictional question: whether Defendants are entitled to sovereign immunity.
B
“Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity.”57 “[S]overeign immunity also prohibits suits against state officials or agencies that are effectively suits against a state.”58 “As an exception to the general rule of state sovereign immunity, Ex parte Young permits plaintiffs to sue a state officer in his official capacity for an injunction to stop ongoing violations of federal law.”59 Importantly: “The officer sued must have ‘some connection with the enforcement of the [challenged] act.‘”60
While the “some connection” test is amorphous, we have identified three guideposts to guide the analysis. “First, an official must have more than ‘the general duty to see that the laws of the state are implemented.”61 Second, “the official must have ‘the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.‘”62 “Third, ‘enforcement’ means compulsion or constraint.”63
But one key component of the analysis is missing—Defendants lack “a demonstrated willingness to exercise [their] duty” to enforce Chapter 423.65 While the record shows that DPS issued six warnings and one citation for conduct involving drone operators, none of these incidents was for violating Chapter 423 specifically. Thus, in the decade or so that Chapter 423 has been on the books, the record evidence shows that Director McCraw, Chief Mathis, and their respective agencies have never enforced it. We have held that even “a scintilla of enforcement by the relevant state official with respect to the challenged law will do,”66 but here there is not even a scintilla of enforcement. Not even an iota of a scintilla. Zilch. We therefore hold that
the Ex parte Young exception is inapplicable to Director McCraw and Chief Mathis, and they are entitled to sovereign immunity.
The same cannot be said for the Hays County District Attorney. This is because “state sovereign immunity applies only to states and state officials, not to political subdivisions like counties and county officials.”67 Indeed, we have “held that Texas district attorneys [are] not protected by the Eleventh Amendment” precisely because they are county officials, not state officials.68 Accordingly, while Defendants McCraw and Mathis are entitled to state sovereign immunity, Defendant Higgins is not.
C
Moving to the merits, we now consider whether the Surveillance and No-Fly provisions facially violate the First Amendment. They do not.
1
We start with the No-Fly provisions, which make it unlawful to fly a drone under 400 feet above a correctional facility, detention facility, critical infrastructure facility, or sports venue—subject, of course, to numerous statutory exceptions, such as the one for commercial purposes.69
But Plaintiffs’ First Amendment challenge to the No-Fly provisions falters because “only conduct that is ‘inherently expressive’ is entitled to First Amendment protection.”70 The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions
has anything to do with
Plaintiffs attempt to convert the No-Fly provisions into speech regulations by noting that drones are often used for photography. By making it illegal to fly drones over sensitive sites like prisons, they say, Chapter 423 necessarily prohibits photojournalists from capturing images from the air directly over those facilities. They claim that this prevents them from capturing newsworthy subjects cheaply and safely. Plaintiffs take issue with the absence of a specific exemption for the press and argue that “Chapter 423 directly targets speech.”
We are not persuaded. The Supreme Court put it this way nearly 60 years ago:
There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen‘s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.71
Because the No-Fly provisions have nothing to do with speech or even expressive activity, they do not implicate the First Amendment. Accordingly, we reverse the district court‘s judgment that the No-Fly provisions facially violate the First Amendment.
We turn next to the Surveillance provisions, which, unlike the No-Fly provisions, implicate at least some First Amendment protections.
2
To refresh, the Surveillance provisions make it unlawful to use a drone to “capture an image” of private individuals or property, without their consent, “with the intent to conduct surveillance on the individual or property captured in the image.”72 And just like the No-Fly provisions, the Surveillance provisions have several express exceptions that do not include the press.73 Plaintiffs characterize aerial surveillance as “speech” and assert that, by letting some people use drones to capture images but not others, the Surveillance provisions violate the
Courts have long held that, unlike flight restrictions, restrictions on filming can implicate the
reasoning that, under its clear and binding precedent, the act of recording is itself an inherently expressive activity.76 JUDGE CHRISTEN dissented, arguing, among other things, that the right to free speech does not necessarily include an unrestrained right to record others’ speech.77
These debates are not new. The Seventh Circuit in ACLU of Illinois v. Alvarez held more than a decade ago that “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment‘s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”78 That court reasoned that the “right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.”79 Following that premise, the Seventh Circuit went on to hold as likely unconstitutional an Illinois anti-eavesdropping statute. JUDGE POSNER dissented, warning that such novel “interpretations” of the
In our own circuit, the leading case is Turner v. Lieutenant Driver. There, we held that “the First Amendment protects the right to record the police.”82 In reaching that conclusion, we reasoned that the Supreme Court has held that newsgathering and the right to receive information are entitled to
The obvious question then becomes: How much scrutiny?
“In an abundance of caution,” “we apply the intermediate scrutiny test,” “which balances the individual‘s right to speak with the government‘s power to regulate.”88 While aerial surveillance is not inherently expressive, and even though the non-expressive aspects of the Surveillance provisions predominate over any expressive component, intermediate scrutiny strikes us as appropriate in this context for several reasons.
First, it is the default level of scrutiny applicable to laws like the Surveillance provisions, which do not directly regulate the content of speech and which “pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”89 This is particularly appropriate given the reality that the Surveillance provisions do not directly or even primarily regulate speech and expression—nor do they target any particular message, idea, or subject matter—but neither are they pure drone-operating laws. Second, it is the level of scrutiny suggested in our landmark right-to-film case, Turner v. Lieutenant Driver.90 Third, it is the level of scrutiny we applied in an analogous case. In Peavy v. WFAA-TV, Inc., we considered a
The Surveillance provisions here are similar to the anti-wiretapping laws in Peavy in that they regulate not what images can be captured but instead the means by which those images can be captured. They are also similar in that they call for us to balance
Plaintiffs argue that strict scrutiny should apply. So, before we apply intermediate
First, like the district court, they reason the Surveillance provisions are content-based restrictions on speech (filming, more precisely) because they “require the enforcing official to inquire into the contents of the image to determine whether it is prohibited.”94 “An official must first ascertain the subject matter of the drone image to determine whether it is permissible under the statute. Therefore, it is the content of the image that determines its permissibility—the definition of a content-based restriction.”95 But the Surveillance provisions are not content-based. They classify images as lawful or unlawful based not on what is in the picture, but on the basis of how the picture is taken. The very same aerial image can be unlawfully captured using a drone but lawfully captured using a helicopter, a tall ladder, a high building, or even a really big trampoline. Indeed, the same image could be captured using a drone, so long as the drone is flown at a height below eight feet—roughly the height of a person standing on the ground holding a camera above his or her head.96
Separately, the district court‘s analysis cannot be upheld in light of recent developments in
Second, Plaintiffs take the position, as did the district court, that the Surveillance provisions discriminate on the basis of content because they are speaker-based, again triggering strict scrutiny.99 They argue that Chapter 423 impermissibly favors certain speakers—well, drone operators—and disfavors others by excepting some operators from the Surveillance provisions. For instance, despite the blanket no-drone-surveillance rule, the law exempts scholars who use drones for their academic research and the military for its exercises and missions.100
While the law certainly favors some drone operators over others, the Surveillance provisions are not for that reason automatically subject to strict scrutiny. The reason that speaker-based distinctions often trigger strict scrutiny is that restricting speakers can be a facially content-neutral loophole to suppress certain content or viewpoints disfavored by the government.101 But concerns over content and viewpoint discrimination are not present in the Surveillance provisions’ preference for certain drone operators. While the law distinguishes among photographers, it
Finally, Plaintiffs argue that the Surveillance provisions are subject to strict scrutiny because the law imposes a direct burden on newsgathering and journalism. Drones, they say, “have become quintessential tools for documenting newsworthy events.” Indeed, the undisputed record evidence shows that photojournalists like Calzada and Wade find drones to be a very helpful technology in their trade.
But this argument also fails to trigger strict scrutiny. The Supreme Court has stated, in no uncertain terms, that “the
In short, “generally applicable laws do not offend the
At most, then, intermediate scrutiny applies to the Surveillance provisions. After all, the Surveillance provisions regulate not what image is captured, but where it is taken from (above eight feet in the air) and how it is taken (from a drone, without permission, and with the intent to conduct surveillance).117 Such an approach comports not just with Turner but also with Peavy v. WFAA-TV, Inc., where we held that a
We now apply that standard.
Under intermediate scrutiny, “[a] content-neutral regulation will be sustained if it furthers an important governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
Peavy is particularly pertinent. As previously discussed, there we held that anti-wiretapping statutes—laws prohibiting surreptitious surveillance—survived intermediate scrutiny.123 Relevant here, we held that the government has “a substantial interest in protecting the confidentiality of private wire, oral, and electronic communications,” that this privacy interest is “unrelated to the suppression of free expression,” and that by making unlawful the interception and disclosure of private wire transmissions, the anti-wiretapping acts were narrowly tailored to the governmental interest in protecting privacy.124
We follow Peavy here. As that case held, the government has a substantial interest in protecting the privacy rights of its citizens. Indeed, we noted that the privacy interests at stake “are of constitutional dimension.”125 Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach. And as for tailoring—as in Peavy, the government‘s ability to accomplish its goal of protecting privacy rights would be “achieved less effectively” absent the Surveillance provisions.126 The law is also tailored to bar only surveillance that could not be achieved through ordinary means—the law contains an exception for images captured “from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception.”127 We therefore conclude that the law survives intermediate scrutiny.
For similar reasons, we reject Plaintiffs’ catchall contention that the Surveillance provisions violate the overbreadth doctrine. “To show overbreadth, plaintiffs must establish that [the Surveillance provisions] encompass[] a substantial number of unconstitutional applications ‘judged in relation to the statute‘s plainly legitimate sweep.‘”128 Plaintiffs have not done so. To the contrary, as we have explained, the Surveillance provisions are narrowly tailored to Texas‘s substantial interest in protecting her citizens’ right to privacy. Plaintiffs have identified no unlawful applications of Chapter 423, and their arguments to the contrary simply assume Chapter 423 is unlawful to begin with. We therefore reverse the district court‘s holding that Chapter 423 is facially overbroad.129
In sum, the district court erred in holding that Chapter 423 facially violates the
Having resolved Defendants’ appeal, we turn now to Plaintiffs’ cross-appeal, which challenges the dismissal of their field-preemption claim.
D
Plaintiffs argue that the district court erred in dismissing their claim that the No-Fly provisions are preempted by federal regulation of the national airspace.132 In their briefs, they offer two theories of preemption: field preemption and obstacle preemption. But only the former was in the complaint. We address that one and do not address the latter.133
Before proceeding to the merits of the field-preemption claim, though, we must first assure ourselves that Plaintiffs have standing to challenge the No-Fly provisions on preemption grounds.134 Ordinarily, Plaintiffs’ preemption challenge to Chapter 423‘s enforcement would meet the same fate as their Due Process challenge: dismissal for lack of any imminent or concrete threat of enforcement or prosecution. In a recent opinion, however, we held that ongoing pecuniary harm—specifically, paying more than others because of the challenged law—can confer standing to challenge a state regulation on preemption grounds, since enjoining the state law “erases” future pecuniary harm resulting from the challenged law.135
Here, at least one Plaintiff has an ongoing pecuniary injury similar to that in Young Conservatives. NPPA member Wade testified that Chapter 423 is costing him “thousands of dollars” in lost photojournalism opportunities, as his clients are unwilling to violate Chapter 423 or pay for him to do so. Chapter 423 places law-abiding Texas photojournalists like Wade at a disadvantage to competitors from out of state and those who do not know of or do not follow Chapter 423. As Pappalardo testified, for freelance journalists like him, the ability to enhance a story with “aerial imagery can be the difference between selling a pitch or being denied.” Plaintiffs’ compliance with Chapter 423 is costing them real money. Because this ongoing financial injury is fairly traceable to the likelihood of Chapter 423‘s enforcement, and because an injunction is likely to redress the injury, we hold that Plaintiffs have standing to raise their preemption claim.136
Nevertheless, Plaintiffs’ field-preemption claim fails on the merits.
“Field preemption occurs when States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must
Field preemption of state law is disfavored. Courts should not infer field preemption in “areas that have been traditionally occupied by the states,” in which case congressional intent to preempt must be “clear and manifest.”140 States’ police powers, including those necessary to safeguard the protection of citizens, fall into this category.141 Additionally, “where, as in this case, Congress has entrusted an agency with the task of promulgating regulations to carry out the purposes of a statute, as part of the preemption analysis we must consider whether the regulations evidence a desire to occupy a field completely. Preemption should not be inferred, however, simply because the agency‘s regulations are comprehensive.”142 And importantly, field preemption is not to be found where federal “regulations, while detailed, appear to contemplate some concurrent state regulation.”143
Here, Plaintiffs have not shown that Congress or the relevant agency, the Federal Aviation Administration,144 intended to occupy the entire field of drone regulation. They point out—correctly—that there are some federal regulations relating to unmanned aerial vehicles. But as the district court astutely observed, “federal law has not completely preempted the field regarding [drones] flying over certain buildings and structures.”145
In fact, the FAA has expressly declined to preempt all state regulation of drones. In promulgating a final agency rule on drone regulation, the agency stated, “The FAA . . . reviewed the comments and . . . decided that specific regulatory text addressing preemption is not required in the final rule.”146 “The FAA is not persuaded
Shortly before oral argument, the parties alerted the court to a recently issued “Fact Sheet” from the FAA. The fact sheet, though it reasserts federal sovereignty over issues of “aviation safety or airspace efficiency,” nonetheless confirms our conclusion today.149 For in it, the FAA again expressly contemplates concurrent regulation with States and localities. That ends the matter.150 But even more importantly, as an example of a permissible concurrent state regulation, the fact sheet states that “security-related restrictions over open-air water treatment facilities or certain types of critical infrastructure” are likely not to be preempted, particularly if the restrictions are “limited to the lower altitudes.” The No-Fly provisions, which prohibit drone flights less than 400 feet over critical infrastructure, are thus expressly permitted, not preempted, even under the fact sheet.
Accordingly, Chapter 423 is not field preempted, and we affirm the district court‘s dismissal of Plaintiffs’ preemption claim.
III
Plaintiffs picked an uphill battle by styling this litigation as a facial, pre-enforcement challenge. “A facial challenge ... is, of course, the most difficult challenge to mount successfully.”151 And the “speech” right they demand is sweeping: an unqualified
Nothing in the original understanding of the
We emphasize that our holding today does not foreclose all
We therefore
- VACATE the portion of the district court‘s order that enjoins Defendants from enforcing the civil provisions of Chapter 423 and REMAND with instructions to dismiss that portion of Plaintiffs’ claim for lack of Article III standing;
- VACATE the portion of the district court‘s order that enjoins Defendants from enforcing Chapter 423 on Due Process grounds and REMAND with instructions to dismiss the Due Process claims for lack of Article III standing;
- VACATE the portion of the district court‘s order that enjoins Director McCraw and Chief Mathis from enforcing Chapter 423 on
First Amendment grounds and REMAND with instructions to dismiss Plaintiffs’First Amendment claims against them on grounds of sovereign immunity; - REVERSE the portion of the district court‘s order that enjoins Defendant Higgins from enforcing Chapter 423 on
First Amendment grounds and REMAND with instructions to enter judgment in favor of Defendant Higgins on Plaintiffs’First Amendment claims; and - AFFIRM the district court‘s dismissal of Plaintiffs’ preemption claims.