Texas journalists can now reap benefits of using drones

What you need to know before taking flight
A cheaper, safer and more innovative way of reporting from the Texas skies has become available after a federal court struck down a state law that threatened civil and criminal penalties for using drones for newsgathering.

By Michael J. Lambert,
Media/First Amendment Attorney, Haynes and Boone, LLP in Austin

On March 28, 2020, U.S. District Court Judge Robert Pitman ruled that the Texas drone law violated the First Amendment by improperly restricting the right to gather news. The process of capturing photographs and videos using a drone, the court wrote, has “just as much protection under the First Amendment as the images themselves.”
Since its enactment in 2013, the law made it unlawful to use a drone to “capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance” and banned flights over “critical infrastructure” and “sports venues.” It permitted flights for “commercial purposes” and by certain categories of individuals that notably excluded journalists.
The court held that these provisions unconstitutionally prohibited protected expression based on the identity of the drone operator and the subject of the photography and was not narrowly tailored to address the state’s purported interests of privacy and safety. The law, the court found, burdened more speech than necessary even though the legislature had “a variety of tools to protect the privacy and private property of Texans.”
The law swept so broadly that it effectively outlawed drone journalism in 95 percent of the state, the court explained.
The court also found the law to be unconstitutional because its vague language left journalists “unable to discern whether their use of [drone] photography will expose them to criminal or civil enforcement.” For example, the state failed to define or explain the meaning of “surveillance” and “commercial purposes,” terms subject to multiple interpretations.
The Texas Press Association, National Press Photographers Association (NPPA) and freelance journalist Joseph Pappalardo brought the case in 2019 after many journalists and news organizations in Texas stopped using drones for newsgathering for fear of facing criminal and civil liability. In San Marcos, police threatened to prosecute video journalist Guillermo Calzada for using a drone to report on an arson at an apartment complex.
Barring a successful appeal or new legislation, the decision means Texas journalists can now reap the benefits of using drones in their news coverage. Drones allow journalists to quickly access breaking news events such as fires and other natural disasters, and capture clear images at low altitudes. Drones are much safer than alternative means of capturing images from the sky, such as helicopters. An amicus brief filed by the Texas Association of Broadcasters and the Reporters Committee for Freedom of the Press highlighted that the risks of  “loss of life, injury and property damage are vastly worse” when using a helicopter compared to a drone. Drones can also be operated at a fraction of the costs of buying, maintaining and fueling a helicopter.
But before taking flight in Texas — or elsewhere — journalists must follow national and local drone regulations. The Federal Aviation Administration (FAA), which controls U.S. airspace, requires that drone operators follow Part 107 of the Code of Federal Regulations. Part 107 compliance requires (1) learning its rules; (2) earning a remote pilot certificate; and (3) registering the drone with the FAA.
Part 107 explains that certain types of drone flights are prohibited, such as those:
• In restricted air spaces without permission. Airspace is restricted near airports, stadiums, military bases, national landmarks, and certain “critical infrastructure.”
• Over 400 feet
• At night without authorization 
• Directly over people unless certain conditions are met
• From a moving vehicle or aircraft
• Beyond the operator’s visual line of sight
• In a careless or reckless manner
After studying the Part 107 rules, a journalist must earn a remote pilot certificate by scheduling a test with an FAA-approved testing center. Continuing training must be completed every two years.
The drone should then be registered with the FAA online or by mail. Registration costs $5 per drone and is valid for three years. Registrants will receive an FAA registration certificate, which must be in a pilot’s possession while flying. Pilots must also label their drone with their registration number and enable remote identification.
Besides FAA regulations, drone journalists should be aware of flight restrictions in certain places, especially parks. For example, drone flights are only allowed in Texas state parks with a permit, except for designated areas of Martin Dies, Jr. and San Angelo State Parks. Similarly, drones are only permitted in Harris County parks in specific areas or with permission from the park superintendent.
While flying their unmanned aircraft, drone journalists should remember to follow trespass, privacy and other generally applicable laws. When possible, permission should be obtained to fly over private property, especially in low altitudes. Also, photos and videos should not be taken of areas where there is a reasonable expectation of privacy, such as inside a home, hotel or workplace.
The court’s decision is an opportunity to expand news coverage, but it should not be seen as permission to fly drones without taking the above precautions. The Drone Journalism Lab Operations Manual by the University of Nebraska-Lincoln and the Poynter Institute offer additional resources and checklists of items to consider before, during, and after flights. And as always, journalists should consult the Society of Professional Journalists Code of Ethics and the NPPA Code of Ethics. Journalism ethics apply with equal force in the sky.