National Press Photographers Association v. McCraw

Case Name: National Press Photographers Association v. McCraw

Court: U.S. District Court for the Western District of Texas

Date Filed: Sept. 23, 2021

Update: On March 28, 2022, the U.S. District Court for the Western District of Texas held that Texas’ drone-use restrictions violated the First Amendment. After the state of Texas appealed, the Reporters Committee filed a second friend-of-the-court brief on Nov. 23, 2022, urging the U.S. Court of Appeals for the Fifth Circuit to affirm the lower court’s ruling. The brief, joined by the Texas Association of Broadcasters and 27 news organizations, argues that provisions of the Texas law “discriminate against the press without justification.” On Oct. 23, 2023, the Fifth Circuit reversed the district court’s ruling. While the appeals court rejected NPPA’s facial challenge, it did not foreclose future as-applied challenges to the drone regulations. After the National Press Photographers Association filed a petition for rehearing en banc, the Reporters Committee joined a coalition of news organizations in urging the Fifth Circuit to reconsider its previous ruling. 

Background: Unmanned aerial vehicles — drones — play a growing role in journalism, offering a safer and less expensive way of obtaining images that might otherwise require the use of fixed-wing aircraft or a helicopter. Leveraging those strengths, reporters have made use of drone photography to gain unique vantage points on natural disasters, industrial accidents and major civic gatherings.

But Texas law imposes broad and vague restrictions on drone use, softened by exemptions for a grab bag of favored speakers — academics, students, insurers — but not the press. In 2019, the National Press Photographers Association and Texas Press Association filed suit, arguing that the regulations impose impermissible content-based and speaker-based limits on First Amendment activity.

The suit survived the defendants’ motion to dismiss, and the parties’ competing motions for summary judgment were filed this August.

Our Position: Texas’s regulations discriminate against the news media, and the state’s justifications for that disparate treatment cannot survive the strict scrutiny that the First Amendment requires.

• Drone photography provides an essential tool for modern newsgathering, capturing unique images of everything from hurricanes, floods and protests to “a simple sunrise.”
• In allowing only a favored class — that excludes journalists — to engage in drone photography, the law impermissibly discriminates on the basis of speaker identity.

Quote: “​​These provisions, as written, permit a favored few to engage in comparatively unrestricted UAV photography, but forbid broadcasters and reporters — the public’s newsgathering arm — from doing the same.”

Related: RCFP’s This Week in Technology & Press Freedom newsletter covered the district court’s initial ruling denying the defendants’ motion to dismiss in this litigation late last year.

Fifth Circuit brief:

District Court brief: