Case: 22-50337 Document: 00517028123 Page: 1 Date Filed: 01/10/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 10, 2024
No. 22-50337 Lyle W. Cayce
____________ Clerk
National Press Photographers Association; Texas
Press Association; Joseph Pappalardo,
Plaintiffs—Appellees/Cross-Appellants,
versus
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,
Defendants—Appellants/Cross-Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-946
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
Our prior panel opinion, National Press Photographers Association v.
McCraw, 84 F.4th 632 (5th Cir. 2023), is WITHDRAWN and the following
opinion is SUBSTITUTED therefor:
Chapter 423 of the Texas Government Code governs the operation of
unmanned aerial vehicles—drones—in Texas airspace. In this case, the
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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.
We disagree. Though we do not foreclose any as-applied constitutional
defenses to any hypothetical future prosecutions under the drone laws, we
hold that these facial challenges fail. Accordingly, we REVERSE and
REMAND with instructions to enter judgment in the defendants’ favor on
the constitutional claims. We also reject the plaintiffs’ cross-appeal claiming
that federal aviation law preempts state drone regulation. Quite the contrary,
federal law expressly contemplates concurrent non-federal regulation of
drones, especially where privacy and critical infrastructure are concerned.
On this issue, we AFFIRM the district court’s dismissal of the plaintiffs’
preemption claims.
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
1
Texas Privacy Act, 83d Leg., R.S., ch. 1390, §§ 1–2 (2013), 2013 Tex. Gen.
Laws 3691, 3691–3694 (codified at Tex. Gov’t Code §§ 423.001–423.008).
2
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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:
2
Tex. Gov’t Code § 423.003(a).
3
Id. § 423.002(a)(1)–(21).
4
Id. §§ 423.002(a)(3) & (8).
5
Id. § 423.002(a)(1).
6
Id. § 423.002(a)(14).
7
Id. § 423.002(a)(15).
8
Id. § 423.002(a)(6).
3
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(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
9
Id. § 423.0045(b).
10
Id. § 423.0045(a)(1-a).
11
Tex. Penal Code § 38.115(b). The No-Fly provisions relating to correctional
facilities and detention centers previously were codified in the same section of the Texas
Government Code as the No-Fly provisions relating to critical infrastructure sites. Tex.
Gov’t Code § 423.0045. Effective September 1, 2023, however, the Texas Legislature
moved those provisions to the Penal Code. See Operation of an Unmanned Aircraft Over a
Correctional Facility or Detention Facility; Creating a Criminal Offense, 2023 Tex. Sess. Law
Serv. Ch. 591 (H.B. 3075).
12
Tex. Gov’t Code § 423.0046(b).
4
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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 states are able to do.” “As a
13
Id. §§ 423.0045(c)(5), 423.0046(c)(5). As of September 1, 2023, the provisions
relating to correctional facilities and detention centers no longer appear to have a
commercial-purpose exception. See Tex. Penal Code § 38.115(c).
14
Tex. Gov’t Code §§ 423.003(b), 423.0045(d), 423.0046(d); Tex. Penal
Code § 38.115(d).
15
Tex. Gov’t Code § 423.006(a).
5
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freelancer, being able to provide aerial imagery can be the difference between
selling a pitch or being denied.”
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.
6
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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 anybody for violating Chapter 423 specifically.
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
16
Westfall v. Miller, 77 F.3d 868, 873 n.1 (5th Cir. 1996).
17
Ron Joy previously was Chief of the Texas Highway Patrol and was the defendant
named in the complaint. Mathis has been substituted in this litigation.
18
Wes Mau previously was the Hays County district attorney and the county-level
defendant named in the complaint. Higgins has been substituted in this litigation.
7
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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.
19
Nat’l Press Photographers Ass’n v. McCraw, 504 F. Supp. 3d 568, 591 (W.D. Tex.
2020).
20
Nat’l Press Photographers Ass’n v. McCraw, 594 F. Supp. 3d 789, 813 (W.D. Tex.
2022).
8
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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 it is preempted by federal law.
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; (C) the First Amendment;
and (D) preemption under the Supremacy Clause.24
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
21
Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004).
22
Id. at 538–39.
23
Texas All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022).
24
See Davis v. Sumlin, 999 F.3d 278, 279 (5th Cir. 2021) (“[F]ederal courts must
do jurisdiction first.”).
25
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S.
Const., art. III, § 2).
9
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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
26
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (alteration
accepted) (internal quotation marks omitted).
27
Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020), as revised (Oct. 30,
2020) (citation omitted).
28
See Speech First, 979 F.3d at 330 (citing Lujan v. Def’s of Wildlife, 504 U.S. 555,
560–61 (1992)).
29
Id.
30
Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir. 2011).
10
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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 deferred disposition and did not involve any members of the press. Thus,
Defendants say, Plaintiffs have not been injured by any enforcement of
Chapter 423 and any future injury is purely hypothetical.
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
31
Susan B. Anthony List, 573 U.S. at 158 (internal quotation marks and citation
omitted).
32
See id. at 158. We note that vagueness may be grounds for a pre-enforcement
challenge insofar as it chills protected speech under the First Amendment. See Roark &
Hardee LP v. City of Austin, 522 F.3d 533, 546–47 (5th Cir. 2008) (“Many times void-forvagueness challenges are successfully made when laws have the capacity to chill
constitutionally protected conduct, especially conduct protected by the First
Amendment.” (internal quotation marks omitted)). But as we explain later, see infra § C,
Plaintiffs’ challenge to the No-Fly provisions do not implicate the First Amendment, so we
need not reach this issue.
11
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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
33
See id. at 159.
34
Justice v. Hosemann, 771 F.3d 285, 294 (5th Cir. 2014).
35
Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir. 2021).
36
Speech First, 979 F.3d at 330 (citing Susan B. Anthony List, 573 U.S. at 161–64).
37
Barilla, 13 F.4th at 433 (emphasis added).
38
Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006).
12
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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
Calzada, on assignment for the San Antonio Express-News, was told by San
Marcos police that his use of a drone in July 2018 violated state law. Calzada
continues to violate Chapter 423 but does not do so if law enforcement is
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
39
“In analyzing standing, we assume that [Plaintiffs are] correct on the
merits . . . .” Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 309 (5th Cir.
2023) (citing Texas v. EEOC,
933 F.3d 433, 447 (5th Cir. 2019)).
40
See Speech First, 979 F.3d at 330.
41
Barilla, 13 F.4th at 433.
13
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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
42
709 F.2d 922, 930 (5th Cir. 1983).
43
Id.
44
KVUE, Inc., 709 F.2d at 930.
45
Babbitt, 442 U.S. at 302.
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chokehold incident is not enough to confer standing to seek prospective relief
against all future chokeholds.46 Again, under ordinary circumstances, this is
likely a winning argument—isolated incidents of past unconstitutional acts
generally cannot confer standing to seek prospective relief against future
unconstitutional acts.47 But Defendants’ point falls short in this First
Amendment case because Plaintiffs have provided evidence of ongoing chill
and financial injury. Indeed, in the speech context, past prosecutions are
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
46
461 U.S. 95, 105 (1983).
47
See id.
48
Susan B. Anthony List, 573 U.S. at 164.
49
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).
15
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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.
Plaintiffs’ chill is also fairly traceable to District Attorney Higgins. As
the district attorney, he is charged with prosecuting individuals who violate
50
Tex. Gov’t Code § 411.002(a).
51
E.g., Fontenot v. McCraw, 777 F.3d 741, 746–47 (5th Cir. 2015) (approving
litigants’ standing to bring Due Process claim seeking injunctive relief against Director
McCraw as head of DPS, though ultimately dismissing the claims on mootness grounds);
Nat’l Rifle Ass’n of Am., Inc. v. McCraw,
719 F.3d 338, 344–45 (5th Cir. 2013) (approving
litigants’ standing to bring pre-enforcement Second Amendment challenge to Texas
firearms law).
52
Tex. Gov’t Code § 411.032; Graf v. State, 925 S.W.2d 740, 742 (Tex. App.
1996).
53
See Air Evac EMS, Inc. v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507,
514 (5th Cir. 2017) (finding traceability satisfied where “state defendants oversee the
[challenged] process,” reasoning that the “state defendants’ oversight” of the challenged
program “places state defendants among those who cause [the plaintiff’s] injury”).
16
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criminal laws.54 For this reason, courts have long recognized that prosecutors
are “natural targets for § 1983 injunctive suits since they are the state officers
who are threatening to enforce and who are enforcing the law.”55 Indeed, the
Hays County DA’s office prosecuted at least one drone-related case relating
to Chapter 423. An injunction against future enforcement is therefore likely
to redress Plaintiffs’ claimed injury.
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
54
Tex. Gov’t Code § 44.205(b); cf. Lewis v. Scott, 28 F.4th 659, 664 (5th Cir.
2022) (“[I]t is local prosecutors, not the Secretary, who are specifically charged with
enforcement of the criminal prohibition on possessing a voter’s mail-in ballot.”).
55
Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736 (1980).
56
See Tex. Gov’t Code § 423.006 (civil enforcement provisions); Whole
Women’s Health v. Jackson, 142 S. Ct. 522, 534 (2021) (plaintiffs cannot sue the Texas
Attorney General to enjoin civil actions enforced by private individuals).
57
Whole Woman’s Health, 142 S. Ct. at 532.
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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
Two of these considerations are easily met here. As heads of Texas
law-enforcement agencies, Director McCraw and Chief Mathis have more
than just the general duty to see that the state’s laws are implemented—they
are directly responsible for enforcing Texas’s criminal laws, including those
set forth in Chapter 423. DPS and THP officers arrest people for violating
Texas law, exercising “compulsion or constraint” in service of the law. 64
But one key component of the analysis is missing—Defendants lack
“a demonstrated willingness to exercise [their] duty” to enforce Chapter
58
City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).
59
Lewis, 28 F.4th at 663.
60
Id. (quoting Ex parte Young, 209 U.S. 123, 157 (1908)).
61
Tex. All. for Retired Americans v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (quoting
City of Austin, 943 F.3d at 999–1000).
62
Id. (quoting Tex. Democratic Party v. Abbott,
978 F.3d 168, 179 (5th Cir. 2020)).
63
Id. (quoting City of Austin, 943 F.3d at 1000).
64
Id.
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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 recognize, of course, that we have already concluded that
Plaintiffs sustained an injury for purposes of their First Amendment pre-enforcement challenge because the assumed substantial threat of future
enforcement has chilled their use of drones.67 But this conclusion does not
necessarily conflict with the fact that Defendants have not shown a
demonstrated willingness to exercise their enforcement duties under Ex parte
Young. To be sure, we have suggested that, in some cases, “an official’s
‘connection to enforcement’ is satisfied when standing has been
established,”68 and we have similarly observed that there can be “significant
overlap” between the standing and Ex parte Young inquiries.69 Those
inquiries, however, are not completely coterminous,70 and the mere fact that
65
Id.
66
Tex. Democratic Party, 978 F.3d at 179 (quoting City of Austin, 943 F.3d at 1002)
(internal quotation marks omitted); see Speech First, 979 F.3d at 335 (distinguishing between
facial and as-applied challenges for purposes of addressing “pre-enforcement challenges to
recently enacted . . . statutes”).
67
See supra § II.A.1.
68
City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019).
69
E.g., Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d
507, 513–14 (5th Cir. 2017).
70
See Paxton, 943 F.3d at 1002 (stating that they are “not identical”).
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standing requirements may be relaxed for First Amendment pre-enforcement challenges does not mean that “the requirements of Ex parte
Young have in any way been relaxed or vitiated.” 71 Thus, because Plaintiffs
have provided no evidence that Defendants will enforce Chapter 423, we
hold that the Ex parte Young exception does not apply to Director McCraw
or Chief Mathis and that they are entitled to sovereign immunity.
We cannot, however, extend Eleventh Amendment immunity to Kelly
Higgins, 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.”72 Indeed, we have “held that Texas
district attorneys [are] not protected by the Eleventh Amendment” precisely
because they are county officials, not state officials.73 Granted, a couple of
unpublished opinions have suggested that a district attorney’s entitlement to
Eleventh Amendment immunity may depend on whether he or she is
performing in a local or state capacity.74 But we understand our precedent to
71
Okpalobi v. Foster, 244 F.3d 405, 417 n.17 (5th Cir. 2001) (en banc).
72
Russell v. Jones, 49 F.4th 507, 512 (5th Cir. 2022).
73
Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999).
74
See Spikes v. Phelps, 131 F. App’x 47, 49 n.1 (5th Cir. 2005) (“Texas district
attorneys are shielded by Eleventh Amendment immunity for acts performed as state
officers in the scope of criminal prosecution, but they are not so shielded when they act
with respect to local policies.”); Quinn v. Roach,
326 F. App’x 280, 292 (5th Cir. 2009)
(“[D]istrict attorneys . . . in Texas are agents of the state when acting in their prosecutorial
capacities.”).
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employ a more categorical approach,75 informed by various factors76 that
Higgins does not otherwise argue support his position that he is protected by
the Eleventh Amendment.
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. 77
But Plaintiffs’ First Amendment challenge to the No-Fly provisions
falters because “only conduct that is ‘inherently expressive’ is entitled to
First Amendment protection.”78 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
75
E.g., Hudson, 174 F.3d at 691 (“After carefully weighing these factors against one
another, we conclude that the Orleans Parish District Attorney’s Office is not an arm of
the state.”); Chrissy F. Medley v. Miss. Dep’t of Public Welfare,
925 F.2d 844, 849 (5th Cir.
1991) (holding that “the Mississippi District Attorney is a state official” for Eleventh
Amendment purposes because state law provides that the district attorney’s office would
be “primarily state-funded” and its authority would extend to “statewide concerns”).
76
See Clark v. Tarrant Cnty., 798 F.2d 736, 744–45 (5th Cir. 1986) (outlining six
factors to determine “whether an entity is entitled to Eleventh Amendment immunity”).
77
Tex. Gov’t Code §§ 423.0045 & 423.0046; Tex. Penal Code § 38.115.
78
Voting for Am., Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013) (quoting Rumsfeld
v. F. for Acad. & Institutional Rts., Inc.,
547 U.S. 47, 66 (2006)).
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has anything to do with speech or expression. These are flight restrictions,
not speech restrictions.
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.79
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.
79
Zemel v. Rusk, 381 U.S. 1, 16–17 (1965).
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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.”80 And just like the No-Fly provisions, the
Surveillance provisions have several express exceptions that do not include
the press.81 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 First Amendment.
Courts have long held that, unlike flight restrictions, restrictions on
filming can implicate the First Amendment, at least to some extent. And the
extent of constitutional protections for the right to film is subject to ongoing
and vigorous debate—particularly when, as in this case, third parties’ privacy
rights are threatened. For example, the Fourth Circuit recently held that
undercover animal-rights activists have a First Amendment right to infiltrate
companies and clandestinely film them notwithstanding a North Carolina
property-protection law.82 Judge Rushing dissented, stressing the point
that, even though newsgathering is afforded some First Amendment
protection, “an interest in newsworthy information does not confer a First
Amendment right to enter private property . . . and secretly record” because
“the mere act of recording by itself is not categorically protected speech.” 83
In another recent case, the Ninth Circuit held that an Oregon law prohibiting
the secret recording of conversations violates the First Amendment,
80
Tex. Gov’t Code § 423.003(a).
81
Id. § 423.002(a).
82
People for the Ethical Treatment of Animals, Inc. v. N.C. Farm Bureau Fed’n, Inc.,
60 F.4th 815, 824–834 (4th Cir. 2023) (PETA).
83
See id. at 845–47 (Rushing, J., dissenting).
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reasoning that, under its clear and binding precedent, the act of recording is
itself an inherently expressive activity.84 Judge Christen dissented,
arguing, among other things, that the right to free speech does not necessarily
include an unrestrained right to record others’ speech.85
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.”86 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.”87 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 First
Amendment have no foundation in the text or original understanding of the
First Amendment,88 and urging courts to tread carefully when elevating the
right to record private individuals above the privacy rights of those
individuals.89
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
84
Project Veritas v. Schmidt, 72 F.4th 1043, 1055 (9th Cir. 2023) (citing Animal Legal
Def. Fund v. Wasden,
878 F.3d 1184 (9th Cir. 2018)).
85
See id. at 1069 (Christen, J., dissenting).
86
679 F.3d 583, 595 (7th Cir. 2012).
87
Id.
88
Id. at 610 (Posner, J., dissenting).
89
Id. at 614.
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police.”90 In reaching that conclusion, we reasoned that the Supreme Court
has held that newsgathering and the right to receive information are entitled
to First Amendment protection, “even though this right is not absolute.”91
Citing the Seventh Circuit’s decision in Alvarez, we also suggested that “the
First Amendment protects the act of making a film, as ‘there is no fixed First
Amendment line between the act of creating speech and the speech itself.’” 92
Finally, in recognizing a right to film the police in the course of their public
duties, we reasoned that the underlying principles of the First Amendment
counseled us to safeguard the right of the people to hold government officials
accountable—filming them in the course of their duties being one way to do
that.93 We emphasized, however, that the right to film the police is not
unqualified. The right extends only to filming police performing their public
duties in public places.94 And even then, the right is “subject to reasonable
time, place, and manner restrictions.”95 Following Turner’s lead, we hold
that restrictions on the right to film—not just police but in general—are
subject to at least some level of First Amendment scrutiny.
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.”96 While aerial surveillance is not inherently expressive,
and even though the non-expressive aspects of the Surveillance provisions
90
848 F.3d 678, 690 (5th Cir. 2017).
91
Id. at 688.
92
Id. at 688–89 (quoting Alvarez,
679 F.3d at 596).
93
Id. at 699.
94
Id. (citing Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011)).
95
Id. (internal quotation marks omitted).
96
Kleinman v. City of San Marcos, 597 F.3d 323, 328 (5th Cir. 2010).
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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.”97 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.98 Third, it is the level of scrutiny we applied in an
analogous case. In Peavy v. WFAA-TV, Inc., we considered a First
Amendment challenge to anti-wiretapping laws prohibiting the disclosure of
illegally intercepted telephone conversations. 99 Reasoning that the laws were
content-neutral and restricted communication based solely on the means by
which it was acquired, we held that intermediate scrutiny applied.100
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 First Amendment values against
third parties’ right to privacy. Finally, while the Surveillance provisions no
doubt have an incidental effect on speech, they more closely resemble
conduct regulations (aerial surveillance), not regulations of expression, or
time, place, and manner restrictions (using a drone from a height above eight
97
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).
98
See 848 F.3d at 690.
99
221 F.3d 158, 188 (5th Cir. 2000)
100
Id. at 191.
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feet)—both of which fall under the umbrella of intermediate scrutiny. 101
Intermediate scrutiny thus respects the First Amendment values attached to
photography while remaining cognizant of the obvious fact that recording
from the sky—something the average private person cannot avoid and from
where the average photographer would not be able to reach—is simply not
the same thing as expressing one’s views.
Plaintiffs argue that strict scrutiny should apply. So, before we apply
intermediate scrutiny, we explain why we disagree with Plaintiffs’ position.
They offer three “paths” to strict scrutiny, none of which is persuasive.
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.”102 “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.”103 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
101
See United States v. O’Brien, 391 U.S. 367, 376 (1968) (holding that intermediate
scrutiny applies to regulations “when ‘speech’ and ‘nonspeech’ elements are combined in
the same course of conduct”); Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty.,
457
U.S. 596, 607 n.17 (1982) (“Of course, limitations on the right of access that resemble
‘time, place, and manner’ restrictions on protected speech would not be subjected to such
strict scrutiny.” (citation omitted)).
102
McCraw, 594 F. Supp. 3d at 805.
103
Id. at 806.
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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.104
Separately, the district court’s analysis cannot be upheld in light of
recent developments in First Amendment law. At the time it issued its
decision in this case, the district court did not have the benefit of City of
Austin v. Reagan National Advertising of Austin, LLC, which held that a law is
not content-based simply because one must read a sign to determine whether
it is lawful under the challenged rule.105 Here, the district court concluded
that the Surveillance provisions are content-based simply because one must
look at the image to determine whether it violates Chapter 423.106 That is
(now) an incorrect conclusion of law. We thus reject the notion that the
Surveillance provisions are content-based restrictions on speech.
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.107 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.108
104
Tex. Gov’t Code § 423.002(a)(14).
105
142 S. Ct. 1464, 1474 (2022).
106
Nat’l Press Photographers Ass’n, 594 F. Supp. 3d at 805.
107
See id. at 806.
108
Tex. Gov’t Code §§ 423.002(a)(1), (3).
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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. 109
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 does not distinguish among
photographs—Chapter 423 cares not for the content of the image. For
Chapter 423, what’s in the photograph is irrelevant. It is not enough to say
that the law distinguishes between speakers; to trigger strict scrutiny, the
distinction must be based on the speaker’s message, not just the manner in
which the speaker communicates.110 The latter situation applies here. “Thus,
the fact that the provisions benefit [some photographers] and not [others]
does not call for strict scrutiny under our precedents.”111
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.
109
Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015).
110
Turner Broad. Sys., 512 U.S. at 645 (“It is true that the [challenged] provisions
distinguish between speakers in the television programming market. But they do so based
only upon the manner in which speakers transmit their messages to viewers, and not upon
the messages they carry. . . . So long as they are not a subtle means of exercising a content
preference, speaker distinctions of this nature are not presumed invalid under the First
Amendment.”).
111
Id. at 659.
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But this argument also fails to trigger strict scrutiny. The Supreme
Court has stated, in no uncertain terms, that “the First Amendment does not
guarantee the press a constitutional right of special access to information not
available to the public generally.”112 In Branzburg, the High Court refused to
create a First Amendment privilege for journalists to keep them from having
to participate in grand jury investigations on the ground that revealing
confidential informants would hinder the press’s ability to gather news. In
rejecting that claimed privilege, the Court reasoned that “the First
Amendment does not invalidate every incidental burdening of the press that
may result from the enforcement of civil or criminal statutes of general
applicability.”113 “The Court has emphasized that” the press “has no special
immunity from the application of general laws. . . . no special privilege to
invade the rights and liberties of others.”114 “Although stealing documents
or private wiretapping could provide newsworthy information, neither
reporter nor source is immune for conviction for such conduct, whatever the
impact on the flow of news.”115 And journalists “have no constitutional right
of access to the scenes of crime or disaster when the general public is
excluded.”116 Thus, while drones are no doubt a helpful tool in the
journalist’s toolkit, restrictions on drone usage do not trigger strict scrutiny.
“From the beginning of our country the press has operated without
constitutional protection for [drones], and [yet] the press has flourished.” 117
112
Branzburg v. Hayes, 408 U.S. 665, 684 (1972); see also Davis v. E. Baton Rouge
Par. Sch. Bd.,
78 F.3d 920, 928 (5th Cir. 1996) (“[T]he news media have no right to discover
information that is not available to the public generally.”).
113
Branzburg, 408 U.S. at 682.
114
Id. at 683 (quoting Associated Press v. NLRB,
301 U.S. 103 (1937)).
115
Id. at 691.
116
Id. at 684–85.
117
Id. at 698–99.
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In short, “generally applicable laws do not offend the First
Amendment simply because their enforcement against the press has
incidental effects on its ability to gather and report the news.” 118 While
newsgathering is no doubt critical to a free society, the right to gather news
affords no right to compel others to supply information.119 Here, Plaintiffs
claim a First Amendment right to use aerial drones to conduct
“surveillance” on private persons and property without consent. 120 But in
light of the authorities above, no such right exists. The press “has no special
privilege to invade the rights and liberties of others.” 121 We stress that the
Surveillance provisions protect only private individuals and property.122 They
expressly permit using drones to capture images on “public real property or
a person on that property.”123 This makes good sense because there is an
important and obvious “distinction between recording in public spaces and
unauthorized recording on private property.”124
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).125 Such an approach comports not just with Turner but also
118
Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).
119
Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (plurality op.).
120
Tex. Gov’t Code § 423.003(a).
121
Branzburg, 408 U.S. at 683.
122
Tex. Gov’t Code § 423.003(a) (“individual or privately owned real
property”).
123
Id. § 423.002(a)(15).
124
PETA, 60 F.4th at 845 (Rushing, J., dissenting) (collecting cases).
125
Tex. Gov’t Code §§ 423.003(a), 423.002(a)(14), 423.002(a)(6).
31
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with Peavy v. WFAA-TV, Inc., where we held that a First Amendment
challenge to anti-wiretapping statutes were subject to intermediate scrutiny
by reasoning along similar lines—that the anti-wiretapping laws regulated
“the manner in which the information is acquired.”126
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 First Amendment freedoms is no
greater than is essential to the furtherance of that interest.127 “To satisfy this
standard, a regulation need not be the least speech-restrictive means of
advancing the Government’s interests.”128 “Rather, the requirement of
narrow tailoring is satisfied ‘so long as the regulation promotes a substantial
government interest that would be achieved less effectively absent the
regulation.’”129 “Narrow tailoring in this context requires, in other words,
that the means chosen do not ‘burden substantially more speech than is
necessary to further the government’s legitimate interests.’”130
Peavy is particularly pertinent. As previously discussed, there we held
that anti-wiretapping statutes—laws prohibiting surreptitious surveillance—
survived intermediate scrutiny.131 Relevant here, we held that the
government has “a substantial interest in protecting the confidentiality of
126
Peavy, 221 F.3d at 188–89 (emphasis added).
127
Turner Broad. Sys., 512 U.S. at 662 (internal quotation marks omitted).
128
Id.
129
Id. (quoting Ward v. Rock Against Racism,
491 U.S. 781, 799 (1989)) (alteration
accepted).
130
Id. (quoting Ward,
491 U.S. at 799).
131
221 F.3d at 193.
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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.132
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.”133
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.134 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.”135 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]
132
Id. at 192–93.
133
Id. at 192.
134
See id. at 192–93.
135
Tex. Gov’t Code § 423.002(a)(14).
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encompass[] a substantial number of unconstitutional applications ‘judged in
relation to the statute’s plainly legitimate sweep.’”136 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.137
In sum, the district court erred in holding that Chapter 423 facially
violates the First Amendment. We hasten to emphasize that the Surveillance
provisions are geared only toward protecting private individuals and
property—they expressly permit aerial surveillance and photography of
public property and persons thereon.138 This distinction between public and
private subjects is critical, because there is a key “distinction between
recording in public spaces and unauthorized recording on private
property.”139 It is where we drew the line in Taylor—there is a qualified right
to film public officials performing public duties in public places. And it is why
a different outcome exists both in Peavy and in this case, where the subject of
the surveillance is private. We are more likely to find the government’s
interest in privacy to be substantial where the subject is private rather than
public.
Having resolved Defendants’ appeal, we turn now to Plaintiffs’ cross-appeal, which challenges the dismissal of their field-preemption claim.
136
Seals v. McBee, 898 F.3d 587, 593 (5th Cir. 2018), as revised (Aug. 9, 2018)
(quoting United States v. Stevens,
559 U.S. 460, 473 (2010)).
137
See Nat’l Press Photographers Ass’n, 594 F. Supp. 3d at 808.
138
Tex. Gov’t Code § 423.002(a)(15).
139
PETA, 60 F.4th at 845 (Rushing, J., dissenting).
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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.140 Plaintiffs offer two theories of preemption: field preemption and
obstacle preemption. We find that neither applies here.
Before proceeding to the merits of these claims, though, we must first
assure ourselves that Plaintiffs have standing to challenge the No-Fly
provisions on preemption grounds.141 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.142
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’
140
See Nat’l Press Photographers Ass’n, 504 F. Supp. 3d at 591.
141
See Keyes v. Gunn, 890 F.3d 232, 235–36 (5th Cir. 2018).
142
Smatresk, 73 F.4th at 310.
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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.143
Nevertheless, Plaintiffs’ preemption claims fail on the merits.
We start with field preemption. “Field preemption occurs when
States are precluded from regulating conduct in a field that Congress, acting
within its proper authority, has determined must be regulated by its exclusive
governance.”144 “Although the Supreme Court has recognized field-preemption claims, it has indicated that courts should hesitate to infer field
preemption unless plaintiffs show that complete ouster of state power
including state power to promulgate laws not in conflict with federal laws was
the clear and manifest purpose of Congress.”145 When Congress has not
expressly preempted state law, as here, field preemption may still “be inferred
from a scheme of federal regulation so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement it, or where
an Act of Congress touches a field in which the federal interest is so dominant
that the federal system will be assumed to preclude enforcement of state laws
on the same subject.”146
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
143
See id.
144
City of El Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (internal quotation
marks omitted).
145
Id. (internal quotation marks omitted).
146
English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (cleaned up).
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manifest.”147 States’ police powers, including those necessary to safeguard
the protection of citizens, fall into this category.148 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.” 149 And importantly,
field preemption is not to be found where federal “regulations, while
detailed, appear to contemplate some concurrent state regulation.”150
Here, Plaintiffs have not shown that Congress or the relevant agency,
the Federal Aviation Administration,151 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.”152
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
147
Id. (cleaned up).
148
Cipollone v. Ligget Grp., Inc., 505 U.S. 504, 518 (1992); City of Erie v. Pap’s A.M.,
529 U.S. 277, 296 (2000) (“[E]fforts to protect public health and safety are clearly within
the city’s police powers”).
149
R.J. Reynolds Tobacco Co. v. Durham Cnty., 479 U.S. 130, 149 (1986) (emphasis
added) (internal citation omitted).
150
Id.
151
See 49 U.S.C. § 40103.
152
Nat’l Press Photographers Ass’n, 504 F. Supp. 3d at 589 (emphasis added).
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regulatory text addressing preemption is not required in the final rule.” 153
“The FAA is not persuaded that including a preemption provision in the final
rule is warranted at this time. Preemption issues involving small UAS
necessitate a case-specific analysis that is not appropriate in a rule of general
applicability. Additionally, certain legal aspects concerning small UAS use
may be best addressed at the State or local level. For example, State law and
other legal protections for individual privacy may provide recourse for a
person whose privacy may be affected through another person’s use of a
UAS.”154 These statements unequivocally show that the applicable federal
“regulations, while detailed, appear to contemplate some concurrent state
regulation.”155 That is sufficient, but there is more.
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.156 For in it, the FAA again
expressly contemplates concurrent regulation with States and localities. That
ends the matter.157 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
153
Operation and Certification of Small Unmanned Aircraft Systems, 81 FR 42064-
01, 42194 (June 28, 2016).
154
Id.
155
R.J. Reynolds, 479 U.S. at 149.
156
State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Fed.
Aviation Admin. (July 14, 2023), https://www.faa.gov/sites/faa.gov/files/State-LocalRegulation-of-Unmanned-Aircraft-Systems-Fact-Sheet.pdf.
157
See R.J. Reynolds, 479 U.S. at 149.
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drone flights less than 400 feet over critical infrastructure, are thus expressly
permitted, not preempted, even under the fact sheet.
Plaintiffs’ other theory of preemption, that Chapter 423 poses an
obstacle to federal objectives,158 fails for similar reasons.159 So-called obstacle
preemption exists when “the state law ‘stands as an obstacle to the
accomplishment and execution of the full purposes of and objectives of
Congress.’”160 Plaintiffs contend that Chapter 423 meets that formulation
here because it undermines the federal government’s twin goals of
uniformity and exclusivity in the national airspace. As we have already
observed, however, the FAA expressly contemplates concurrent state
regulation of drones. So, as far as we can tell, Chapter 423 cannot pose any
obstacle to national uniformity or exclusivity with respect to drone regulation
because the FAA has never pursued such goals.161
158
According to Defendants, Plaintiffs forfeited this theory of preemption because
it was not raised in their complaint below. Legal theories, however, need not be raised in a
complaint to be considered. Plaintiffs raised their obstacle-preemption argument to the
district court, and that is sufficient to preserve it for our review. See Thomas v. Aneritas Life
Ins. Corp., 34 F.4th 395, 402 (5th Cir. 2022); see also Johnson v. City of Shelby,
574 U.S. 10,
12 (2014) (per curiam) (“The federal rules effectively abolish the restrictive theory of
pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the
plaintiff’s claim for relief.” (quoting 5 C. Wright & A. Miller, Federal
Practice & Procedure § 1219, at 277–78 (3d ed. 2004)).
159
This is perhaps unsurprising given that “the categories of preemption are not
rigidly distinct.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 n.6 (2000).
160
Oneok v. Learjet, Inc., 575 U.S. 373, 377 (2015) (quoting California v. ARC Am.
Corp.,
490 U.S. 93, 100 (1989)). Another way in which obstacle preemption can exist is if
“compliance with both state and federal law is impossible.” Id. Plaintiffs do not argue that
compliance with Chapter 423 and FAA regulations is impossible, however, so we do not
address it.
161
See Skysign Int’l, Inc. v. City & Cnty. of Honolulu, 276 F.3d 1109, 1117 (9th Cir.
2002) (“[S]tate law cannot by its mere existence stand as such an obstacle when the federal
government contemplates coexistence between federal and local regulatory schemes.”).
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Accordingly, Chapter 423 is not preempted, and we affirm the district
court’s dismissal of Plaintiffs’ preemption claims.
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.”162 And the “speech” right they demand is
sweeping: an unqualified First Amendment right to conduct aerial
surveillance on non-consenting private individuals on private property, and a
First Amendment right to fly drones at low altitudes directly over critical
infrastructure.
Nothing in the original understanding of the First Amendment or in
our binding precedent permits such a result. In fact, nothing in the
Constitution permits an individual to film his neighbor in the privacy of her
own home—stealthily from the air—for purposes of conducting
“surveillance.” Under Plaintiffs’ novel theory of the First Amendment, laws
prohibiting stalking—and even voyeurism—would fall in the name of “free
speech.”
We emphasize that our holding today does not foreclose all First
Amendment and Due Process challenges to Chapter 423. It is possible that,
in an as-applied challenge, a plaintiff or defendant may persuasively show
that a particular enforcement of Chapter 423 runs afoul of free speech or
fairness principles. But it is not this case.
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
162
United States v. Salerno, 481 U.S. 739, 745 (1987).
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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.
41
