Photojournalism Advocacy Group Dissents

On 23 October 2023, in response to the U.S. Fifth Circuit Court’s reversal of a lower court’s ruling in NPPA v. McCraw, the National Press Photographers Association disseminated the following letter amongst its Texas members:

Dear Texas NPPA members,

As many of you know, in March of 2022, a federal judge ruled that the Texas drone law (Texas Gov’t Code Ch. 423) was a violation of the rights of Free Speech and Due Process. We regret to report that today the Fifth Circuit Court of Appeals reversed that ruling, and held that the Texas drone law is constitutional. We wholeheartedly disagree with the appellate court and we will be discussing our options with the leadership and the other attorneys on the case.

In the meantime, drone journalists in Texas—as well as their employers and clients—will need to reevaluate their use of drones, including considering their tolerance for risk. It is important that when using drones, you discuss this risk with your employers and your clients and find out whether they will support you if you’re challenged while using your drone. One important fact to remember is that under § 423.004 even publishing a photograph that was captured in violation of the statute is itself a violation of the law.

Among other things, the focus of the appellate court’s analysis assumed that a violation of Chapter 423 is always a violation of the right to privacy. We believe the statute is broader than that and it has been used against journalists in situations that didn’t implicate privacy rights. As we are confident that all of you know, it has never been ok to take pictures in a way that constitutes an invasion of privacy. Going forward, if you decide to continue using drones for journalism in Texas, it’s particularly important that you continue to avoid any activity that could be construed as an invasion of privacy.

The one glimmer of hope in the opinion is that the appellate court emphasized that it was leaving the door open for what’s called an “as-applied” challenge, which is a case that would argue that a specific application of the statute violates the First Amendment. In other words, if you are prosecuted or sued for using your drone in a way that should be protected under the First Amendment, you may still have an opportunity to challenge the law under your specific facts. Additionally, any criminal or civil claims would likely be brought in Texas courts, which have different standards than this federal appeals court and might come to a different conclusion. Our goal in filing this lawsuit has always been to prevent journalists from having to go through such a costly experience for the privilege of exercising their First Amendment rights.

We are always available to talk to NPPA members who have questions about laws that impact your work as journalists, including Ch. 423, and we will continue to keep you informed on any further updates on this case. As always, we thank you for your support of NPPA.

Yours truly,

NPPA Advocacy Committee
Mickey H. Osterreicher, NPPA General Counsel
Alicia Calzada, NPPA Deputy General Counsel

Founded in 1946, the National Press Photographers Association (NPPA) is an Athens, Georgia, USA-based professional organization dedicated to the advancement of visual journalism. The Association’s membership comprises still and television photographers, editors, students, and representatives of businesses peripheral to the photojournalism industry. As of 2017, NPPA members—who are obligated to abide by a strict code of ethics—numbered just over six-thousand.

The NPPA’s original certificate of incorporation outlined six key objectives: to advance press photography in all its branches; to promote the general welfare and conditions in the press photography field; to create, promote, and maintain cordial relations and cooperation, a higher spirit of fraternalism, the interchange of thought and opinion freely, and a high standard of conduct among its members; to distribute and disseminate accurate information in regard to matters pertaining to the photographic press of the nation; to settle equitably and justify the differences between its members; and to preserve, stabilize, unify, and coordinate all elements of the photographic press of the nation.

FMI: www.nppa.org