Nat'l Press Photographers Ass'n v. McCraw

• Citation: 504 F.Supp.3d 568
• Decision Date: 30 November 2020
• Docket Number: 1:19-CV-946-RP
• Parties: NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, Texas Press Association, and Joseph Pappalardo, Plaintiffs, v. 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.
• Court: U.S. District Court — Western District of Texas

504 F.Supp.3d 568

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, Texas Press Association, and Joseph Pappalardo, Plaintiffs,

v.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.

1:19-CV-946-RP

United States District Court, W.D. Texas, Austin Division.

Signed November 30, 2020

David A. Schulz, Francesca L. Procaccini, Jennifer Pinsof, Media Freedom & Information Access Clinic, Yale Law School, New Haven, CT, Leah M. Nicholls, Public Justice, P.C., Washington, DC, Leslie A. Brueckner, Public Justice, P.C., Oakland, CA, James A. Hemphill, Graves, Dougherty, Hearon & Moody, PC, Austin, TX, for Plaintiffs.

Christopher D. Hilton, Office of the Attorney General of Texas, Austin, TX, for Defendants Steven McCraw, Ron Joy.

Eric Alexander Johnston, Michael A. Shaunessy, Ethan Jacob Ranis, McGinnis, Lochridge & Kilgore, LLP, Austin, TX, for Defendant Wes Mau.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

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." (Id. at 2, 6); TEX. GOV'T CODE § 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); TEX. GOV'T CODE § 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); TEX. GOV'T CODE § 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 TEX. GOV'T CODE § 423.002. Exemptions include "professional or scholarly research and development or ... on behalf of an institution of higher education." TEX. GOV'T CODE § 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); TEX. GOV'T CODE § 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); TEX. GOV'T CODE §§ 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. ( Id. ). 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. ( Id. ). 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. ( Id. ).

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...