Petition for Writ of Certiorari — National Press Photographers Association, Petitioner v. Kelly Higgins, in His Official Capacity as District Attorney of Hays County, Texas, et al.

Supreme Court briefApr 9, 2024

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No. _________

In the Supreme Court of the United States

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION,

et al.,

Petitioners,

KELLY HIGGINS, in his official capacity as District

Attorney of Hays County, Texas, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Leah M. Nicholls

PUBLIC JUSTICE

1620 L Street NW

Suite 630

Washington, DC 20036

James A. Hemphill

Counsel of Record

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Avenue

Suite 2700

Austin, Texas 78701

(512) 480-5762

jhemphill@gdhm.com

Counsel for Petitioners

(Additional Counsel on Inside Cover)

Mickey H. Osterreicher

General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

FINNERTY OSTERREICHER

& ABDULLA

70 Niagara Street

Buffalo, NY 14202

Alicia Wagner Calzada

Deputy General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

ALICIA WAGNER CALZADA,

PLLC

926 Chulie Drive

Suite 16

San Antonio, TX 78216

David A. Schulz

Tobin Raju

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

QUESTIONS PRESENTED

Texas Government Code Chapter 423 prohibits

capturing with a drone any “image of an individual or

privately owned real property” with the intent to

“conduct surveillance” and bars publication of such

images. The law does not define “surveillance” but,

according to Respondents and dictionary definitions, it

may include newsgathering. Chapter 423 exempts

from its content-based restrictions twenty-one favored

speakers and uses, but does not exempt journalists.

The Fifth Circuit found that the risk of criminal

prosecution under Chapter 423 is demonstrably

chilling Petitioners’ newsgathering and reporting, and

that this injury established their Article III standing

for a facial First Amendment challenge. It found this

same injury insufficient for standing to pursue a voidfor-vagueness due process claim because authorities

had not prosecuted or arrested a journalist.

On the merits of the First Amendment claim, the

Fifth Circuit declined to apply strict scrutiny to the

law’s content- and speaker-based prohibitions and

held that Chapter 423 survives intermediate scrutiny

without addressing its vagueness. The questions

presented are:

1. Do journalists and news organizations whose

First Amendment rights are chilled by an ambiguous

criminal law have standing to bring a facial void-forvagueness due process challenge?

2. What level of scrutiny applies to a law using

content- and speaker-based distinctions to prohibit

taking and publishing certain drone images?

PARTIES TO THE PROCEEDING

Petitioners are the National Press Photographers

Association (NPPA), a nationwide association of

visual journalists; the Texas Press Association (TPA),

a trade organization of over 400 Texas newspapers;

and Joseph Pappalardo, a freelance Texas journalist

and FAA-certified drone pilot. They were plaintiffs in

the district court and appellees/cross-appellants in the

court of appeals.

Respondents are Kelly Higgins, in his official

capacity as district attorney of Hays County, Texas,

Steven McCraw, in his official capacity as director of

the Texas Department of Public Safety, and Dwight

Mathis, in his official capacity as chief of the Texas

Highway Patrol. They were defendants in the district

court and appellants/cross-appellees in the court of

appeals. 1

CORPORATE DISCLOSURE STATEMENT

Petitioner

National

Press

Photographers

Association is a 501(c)(6) organization based in

Georgia. It has no parent corporation, and no publicly

held companies have an ownership interest in it.

1 At the district court, the named defendants were Steven

McCraw, in his official capacity as Director of the Texas

Department of Public Safety; Ron Joy, in his official capacity as

Chief of the Texas Highway Patrol (later substituted with his

successor, Dwight Mathis); and Wes Mau, in his official capacity

as the District Attorney of Hays County, Texas (later substituted

with his successor Kelly Higgins).

iii

Petitioner Texas Press Association is a 501(c)(3)

nonprofit corporation registered in Texas. It has no

parent corporation, and no publicly held companies

have an ownership interest in it.

RELATED PROCEEDINGS

United States District Court (W.D. Tex.):

Nat’l Press Photographers Ass’n v. McCraw, No.

1:19-CV-946 (judgment entered Apr. 13, 2022)

United States Court of Appeals (5th Cir.):

Nat’l Press Photographers Ass’n v. McCraw, No.

22-50337 (judgment entered Jan. 10, 2024)

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES.......................................vi

INTRODUCTION ........................................................1

OPINIONS BELOW ....................................................2

JURISDICTION ..........................................................2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED....................................2

STATEMENT OF THE CASE ....................................3

A. Chapter 423’s Prohibition on Capturing

or Publishing Certain Drone Images ...........3

B. Chapter 423’s Chilling Impact on the

Press ..............................................................5

C. Proceedings Below ........................................7

REASONS FOR GRANTING THE PETITION ....... 10

I. The Fifth Circuit’s Unique Rejection of Due

Process Standing to Challenge a Vague,

Speech-Chilling Law Warrants Review .......... 10

A. The Fifth Circuit decision contravenes

this Court’s holdings on Article III

standing. ..................................................... 11

B. The Fifth Circuit decision conflicts with

the standing decisions of other circuits. .... 16

C. If permitted to stand, the Fifth Circuit

decision will force speakers faced with a

vague law to choose between selfcensorship or risking prosecution. ............. 19

II. The Fifth Circuit’s Refusal to Apply Strict

Scrutiny to a Content- and Speaker-Based

Regulation of Speech Warrants Review .......... 22

A. The Fifth Circuit’s refusal to apply strict

scrutiny to a content-based speech

restriction contradicts decisions of this

Court and other circuits. ............................ 23

B. The Fifth Circuit misconstrues City of

Austin and sows confusion about when a

content-based law must be subjected to

strict scrutiny. ............................................ 26

C. The Fifth Circuit’s refusal to apply strict

scrutiny to a law that favors some

speakers and purposes over journalists

and news reporting further conflicts with

decisions of this Court and other circuits. . 31

D. If permitted to stand, the Fifth Circuit

decision sanctions an ongoing chill on

reporting newsworthy information. ........... 36

CONCLUSION .......................................................... 38

TABLE OF AUTHORITIES

Cases

Page(s)

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) ............................................... 24

Act Now to Stop War & End Racism Coal. v.

District of Columbia,

589 F.3d 433 (D.C. Cir. 2009) ............................... 18

Animal Legal Def. Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018) ............................... 25

Ark. Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) ............................................... 34

Ashton v. Kentucky,

384 U.S. 195 (1966) ............................................... 20

Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289 (1979) ......................................... 11, 12

Baggett v. Bullitt,

377 U.S. 360 (1964) ............................................... 20

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335 (2020) ........................................... 35

Billings v. Atkinson,

489 S.W.2d 858 (Tex. 1973)................................... 38

Branzburg v. Hayes,

408 U.S. 665 (1972) ................................................. 9

Brokamp v. James,

66 F.4th 374 (2d Cir. 2023) ................................... 29

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ......................................... 23, 24

vii

Brown v. Kemp,

86 F.4th 745 (7th Cir. 2023).................................. 28

Cal. Pro-Life Council, Inc. v. Getman,

328 F.3d 1088 (9th Cir. 2003) ............................... 17

California v. Texas,

593 U.S. 659 (2021) ............................................... 15

Carey v. Brown,

447 U.S. 455 (1980) ......................................... 23, 27

Citizens United v. FEC,

558 U.S. 310 (2010) ....................................31, 34, 36

City of Austin v. Reagan Nat’l Advert.

of Austin, LLC,

596 U.S. 61 (2022) ................................26, 27, 30, 32

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) ............................................... 34

Consol. Edison Co. v. Pub. Serv. Comm’n,

447 U.S. 530 (1980) ............................................... 27

Ctr. for Individual Freedom v. Madigan,

697 F.3d 464 (7th Cir. 2012) ................................. 18

Doe v. Harris,

772 F.3d 563 (9th Cir. 2014) ................................. 33

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............................................... 20

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ......................................... 20, 21

Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91 (1979) ................................................. 15

Grayned v. City of Rockford,

408 U.S. 104 (1972) ......................................... 20, 21

viii

Harrell v. Fla. Bar,

608 F.3d 1241 (11th Cir. 2010) ............................. 18

Herndon v. Lowry,

301 U.S. 242 (1937) ............................................... 20

Hill v. Colorado,

530 U.S. 703 (2000) ............................................... 16

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010) ............................................ passim

Int’l Outdoor, Inc. v. City of Troy,

77 F.4th 432 (6th Cir. 2023).................................. 28

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ......................................... 20, 21

Kolender v. Lawson,

461 U.S. 352 (1983) ............................................... 20

Mazo v. N.J. Sec’y of State,

54 F.4th 124 (3d Cir. 2022) ............................. 29, 30

McCullen v. Coakley,

573 U.S. 464 (2014) ............................................... 37

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ............................................... 14

Minneapolis Star & Trib. Co. v. Minn.

Comm’r of Revenue,

460 U.S. 575 (1983) ......................................... 34, 35

NAACP v. Button,

371 U.S. 415 (1963) ............................................... 11

Nat’l Inst. of Fam. & Life Advocs. v. Becerra,

585 U.S. 755 (2018) ............................................... 25

Nat’l Press Photographers Ass’n v. McCraw,

594 F. Supp. 3d 789 (W.D. Tex. 2022) .................... 2

Nat’l Press Photographers Ass’n v. McCraw,

84 F.4th 632 (5th Cir. 2023).................................... 2

Nat’l Press Photographers Ass’n v. McCraw,

90 F.4th 770 (5th Cir. 2024).................................... 2

N.C. Right to Life, Inc. v. Bartlett,

168 F.3d 705 (4th Cir. 1999) ................................. 17

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021).................................. 25

People for the Ethical Treatment of Animals,

Inc. v. N.C. Farm Bureau Fed’n, Inc.,

60 F.4th 815 (4th Cir. 2023)............................ 25, 33

Police Dep’t v. Mosley,

408 U.S. 92 (1972) ........................................... 23, 28

Project Veritas v. Schmidt,

72 F.4th 1043 (9th Cir. 2023)................................ 29

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ............................................... 23

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................ passim

Reno v. ACLU,

521 U.S. 844 (1997) ......................................... 19, 20

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ............................................... 16

Sable Commc’ns of Cal., Inc. v. FCC,

492 U.S. 115 (1989) ............................................... 25

Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd.,

502 U.S. 105 (1991) ............................................... 23

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ......................................... 31, 32

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ............................................... 15

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................... 19

Stromberg v. California,

283 U.S. 359 (1931) ............................................... 20

Surita v. Hyde,

665 F.3d 860 (7th Cir. 2011) ................................. 33

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ..............................11, 12, 13, 14

Tandon v. Newsom,

593 U.S. 61 (2021) ................................................. 35

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ....................................31, 32, 37

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) ......................................... 25, 31

United States v. Stevens,

559 U.S. 460 (2010) ............................................... 24

Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) ..............................11, 12, 13, 15

Winters v. New York,

333 U.S. 507 (1948) ............................................... 20

Woodhull Freedom Found. v. United States,

948 F.3d 363 (D.C. Cir. 2020) ............................... 18

Statutes

28 U.S.C. § 1254(1) ..................................................... 2

42 U.S.C. § 1983 ......................................................... 7

2013 Tex. HB 912 ....................................................... 4

Tex. Gov’t Code § 423.002(a)...................................... 4

Tex. Gov’t Code § 423.002(a)(1) ............................... 32

Tex. Gov’t Code § 423.002(a)(5)(C) .......................... 32

Tex. Gov’t Code § 423.002(a)(11) ............................. 32

Tex. Gov’t Code § 423.002(a)(13) ............................. 32

Tex. Gov’t Code § 423.002(a)(15) ......................... 4, 23

Tex. Gov’t Code § 423.003(a)............................ 3, 4, 23

Tex. Gov’t Code § 423.004 ........................................ 23

Tex. Gov’t Code § 423.004(b)...................................... 3

Tex. Gov’t Code § 423.004(c) ...................................... 3

Tex. Gov’t Code § 423.006 .......................................... 3

Tex. Penal Code § 21.17 ........................................... 38

Tex. Penal Code § 30.05 ........................................... 38

U.S. Const. amend. I .................................................. 2

U.S. Const. amend. XIV, § 1 ...................................... 3

Other Authorities

Conference Committee Report, H.B. 912, 83rd

Leg., Reg. Sess., at 18 (Tex. 2013) .......................... 5

INTRODUCTION

This petition arises from a pre-enforcement

challenge by journalists and news organizations to

Texas Government Code Chapter 423, a vague law

that can be read to criminalize the use of drones for

gathering and publishing newsworthy images.

Drones are cost-effective newsgathering tools that

have become vital for 21st-Century journalism, but

Texas journalists were forced to stop creating and

publishing drone images out of fear of prosecution

under the ambiguous law and suffered economic harm

as a result. Despite this ongoing injury, the Fifth

Circuit refused to consider Petitioners’ due process

vagueness challenge unless and until a journalist is

arrested or prosecuted. Review by this Court is

warranted because this restriction on Article III

standing imposes a jurisdictional bar that no other

circuit imposes and is irreconcilable with this Court’s

decision in Holder v. Humanitarian Law Project.

The Fifth Circuit also rejected Petitioners’ First

Amendment challenge to Chapter 423’s content- and

speaker-based prohibitions against taking and

publishing certain drone images. This decision

warrants review because the Fifth Circuit’s refusal to

apply strict scrutiny to a law imposing both contentand speaker-based restrictions on the creation and

dissemination of speech defies Reed v. Town of

Gilbert, misapplies City of Austin v. Reagan National

Advertising of Austin, and conflicts with authoritative

rulings by other circuits.

The Fifth Circuit has allowed an ambiguous,

content-based criminal law that is chilling First

Amendment rights to remain in effect without

addressing its admitted vagueness and without

applying the scrutiny this Court requires. Certiorari

is needed to remedy the ongoing restrictions on

gathering and publishing news that the decision

permits.

OPINIONS BELOW

The opinion of the Fifth Circuit is reported at

90 F.4th 770 (5th Cir. 2024) and reprinted at App.1a.

The opinion of the district court is reported at

594 F. Supp. 3d 789 (W.D. Tex. 2022) and reprinted at

App.49a.

JURISDICTION

The Fifth Circuit entered its initial decision on

October 23, 2023. 84 F.4th 632 (5th Cir. 2023). On

January 10, 2024, it granted in part and denied in

part Petitioners’ petition for panel rehearing, denied

Petitioners’ petition for rehearing en banc, issued a

substituted decision, and entered judgment. App.46a48a. This Court has jurisdiction under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution states in relevant part that “Congress

shall make no law . . . abridging the freedom of

speech, or of the press.” U.S. Const. amend. I.

The Due Process Clause of the Fourteenth

Amendment to the United States Constitution states

“nor shall any State deprive any person of life, liberty,

or property, without due process of law.” U.S. Const.

amend. XIV, § 1.

Relevant portions of Texas Government Code

Chapter 423 appear at App.88a.

STATEMENT OF THE CASE

A. Chapter 423’s Prohibition on Capturing or

Publishing Certain Drone Images

Chapter 423 of the Texas Government Code

criminalizes using a drone “to capture an image of an

individual or privately owned real property in this

state with the intent to conduct surveillance on the

individual or property captured in the image.” Tex.

Gov’t Code § 423.003(a). The law also criminalizes

publication of any such drone image, id. § 423.004(b)(c), and creates parallel civil liability for taking or

publishing drone images, id. § 423.006.

Sections 423.002, .003, .004, and .006 (collectively,

the “Surveillance Provisions”) do not define

“surveillance.” The district court found that dictionary

definitions do not clarify whether newsgathering is a

form of “surveillance,” App.79a, and Respondents

refused to elucidate, saying only that journalism “may

or may not constitute ‘surveillance.’” ROA.579, 593. 2

Respondents also refused to disavow enforcement of

2 “ROA.__” refers to the Fifth Circuit’s record on appeal.

the law against journalists engaged in routine

newsgathering. ROA.592-94.

The state legislature dubbed Chapter 423 the

“Texas Privacy Act,” but the word “privacy” appears

nowhere in the law itself. 2013 Tex. HB 912. The

Surveillance Provisions prohibit drone photography

without regard to the violation of any recognized

privacy right. Whether drone photography is illegal

depends upon the content of the image taken. The law

allows images that show public property and persons

on public property but flatly prohibits any image that

depicts “an individual or privately owned real

property”—even the incidental depiction of private

property captured by a drone flying above public

property is a crime. Tex. Gov’t Code §§ 423.002(a)(15);

423.003(a).

Chapter 423 exempts from this blanket prohibition

on the capture or publication of certain images at least

twenty-one categories of permitted speakers and

purposes. These include professors or students

capturing images “for the purpose of professional or

scholarly research,” real estate brokers “in connection

with the marketing of real property,” land surveyors,

engineers, oil pipeline operators, and insurance

underwriters. Tex. Gov’t Code § 423.002(a).

The law controls which favored speakers can use

drones to capture and disseminate images on many

matters of public concern. It permits, for example, law

enforcement authorities, professors, and students to

capture images of a catastrophic scene, environmental

devastation, or a public safety issue, but prohibits

journalists from doing so. The law provides no

exception for journalists or for the purpose of

reporting the news. An amendment that would have

provided such an exception was rejected despite Texas

lawmakers’ awareness that Chapter 423 would

otherwise “hinder free speech and a free press.”

ROA.814; see Conference Committee Report, H.B.

912, 83rd Leg., Reg. Sess., at 18 (Tex. 2013). 3

B. Chapter 423’s Chilling Impact on the

Press

Enactment of Chapter 423 had a significant,

demonstrable chilling impact on Petitioners’ ability to

gather and report the news. The threat of prosecution

for taking or publishing certain drone images forced

news organizations to avoid drone photography even

when vital information could only feasibly be captured

with a drone. See App.7a, 53a-54a; ROA.644, 676-77,

684-85, 652, 671-72, 684.

Chapter 423’s menace of criminal liability

continues to constrain Petitioners’ ability to conduct

meaningful reporting on many newsworthy events.

See ROA.670, 682, 692. For example, The Dallas

Morning News, a member of Petitioner Texas Press

Association (TPA), will not publish newsworthy drone

images taken by freelancers and bars drone use by

staff photographers, even where alternatives, such as

planes or helicopters, are more dangerous and cost

prohibitive. App.55a-56a; ROA.684; 676-77, 686-87.

3 http://www.lrl.state.tx.us/scanned/83ccrs/hb0912.pdf.

The record validates concerns over Chapter 423’s

criminalization of newsgathering. San Marcos police

threatened a member of Petitioner National Press

Photographers Association (NPPA) with arrest for

using his drone to cover the remains of an apartment

building in Hays County that had burned down days

earlier, killing five people—a story he was covering for

TPA member The San Antonio Express-News.

ROA.650-51. Police said he had “violated state law by

taking pictures” and would “violat[e] state law again”

if he “published the photos.” App.6a-7a. The journalist

subsequently curtailed his use of drone photography;

the Express-News continues to report on the fire and

wishes to publish the aerial image of the scene

without fear of prosecution. ROA.649-55.

TPA and NPPA members continue to report in

Hays County and throughout Texas and continue to

be chilled by Chapter 423 from publishing

newsworthy images. See ROA 1058-59; 1067-70.

Fearing charges under Chapter 423, Petitioner

Pappalardo has been forced to stop using a drone to

cover—or not to cover at all—newsworthy stories

including natural disasters, urban sprawl, and the

clearing of homeless encampments. ROA.20-21.

The potential for prosecution under the

Surveillance Provisions also inflicts ongoing economic

harm on journalists. The record documents thousands

of dollars of lost income to another NPPA member

caused by the risk of Chapter 423 liability and the

resulting refusal of news organizations to publish

drone images. ROA.686-87, 691, 697.

C. Proceedings Below

1. Petitioners filed a facial challenge to the

Surveillance Provisions on First Amendment and

Fourteenth Amendment due process grounds,

pursuant to 42 U.S.C. § 1983. 4 The district court

denied a motion to dismiss these claims. App.56a.

On summary judgment, the district court held that

Petitioners had demonstrated injury in fact sufficient

to establish their Article III standing by showing that

a “credible threat of enforcement” of Chapter 423 had

chilled their speech. App.59a. On the First

Amendment merits, it held that the law’s restrictions

on the creation and publication of speech imposed

through distinctions based on content, speaker, and

use were subject to, and failed, strict scrutiny.

App.70a-73a. The court also found the provisions

“unnecessarily circumscribe protected expression”

and thus unconstitutionally overbroad. App.75a-76a.

Turning to the due process claim, the district court

found the Surveillance Provisions unconstitutionally

vague under the Fourteenth Amendment. The court

found that the ambiguous and undefined term

“surveillance” was chilling speech and failed to

provide reasonable notice of what conduct the law

prohibited. App.79a-81a.

4 Petitioners also challenged other provisions of Chapter 423

(the “No-Fly Provisions”) that barred operation of drones lower

than 400 feet above ground level over certain facilities. App.3a5a. Petitioners do not seek review of the various rulings

upholding that provision. See App.23a.

The district court enjoined Chapter 423’s

enforcement with immediate consequences. The

Texas press resumed using drone images to report on

fires, floods, railroad strikes, and other newsworthy

events. App.14a. Respondents appealed.

2. On appeal, a Fifth Circuit panel reversed and

vacated the injunction, rejecting the district court’s

holdings on Fourteenth Amendment standing and

First Amendment invalidity. App.45a. The panel also

held that Respondents McCraw and Mathis had

Eleventh Amendment sovereign immunity as state

officials, notwithstanding the Ex parte Young

exception. App.23a. It found Respondent Higgins, a

county prosecutor, not immune. Id.

Following Petitioners’ request for rehearing, the

panel issued a revised opinion upholding its original

judgment. App.1a; App.48a. On standing, the Fifth

Circuit found that Chapter 423 chilled Petitioners’

speech and inflicted economic harm. App.16a. It held

that these injuries satisfied Article III for purposes of

Petitioners’ First Amendment claim, but not for

purposes of their due process vagueness claim. The

Fifth Circuit held that Petitioners could not bring a

pre-enforcement due process challenge to a vague

law—even one demonstrably chilling protected

speech—absent an arrest or specific threat of

enforcement against them. App.12a. A police threat to

arrest a journalist for using his drone and a prior

Chapter 423 prosecution of a non-journalist by

Respondent Higgins’ office, App.14a, 18a, were not

sufficient. The panel thus never addressed the very

vagueness that was chilling Petitioners’ speech.

The Fifth Circuit recognized that the penalties

Chapter 423 imposes on the creation and publication

of drone photographs implicate the First Amendment

protections of speech and press, App.28a, but refused

to apply strict judicial scrutiny for three reasons.

First, the Fifth Circuit viewed the Surveillance

Provisions as imposing a neutral “time, place, or

manner” restriction because they apply only to drones

flown more than eight feet above ground and, in this

respect, are “based not on what is in the picture” but

rather on “how the picture is taken.” App.30a. It read

City of Austin v. Reagan National Advertising of

Austin, LLC to permit a court to examine the content

of speech in determining whether a speech restriction

applies without applying strict scrutiny, and it saw no

need to address Chapter 423’s discrimination among

drone images taken above eight feet based upon their

content, speaker, and purpose. App.28a-29a.

Second, the Fifth Circuit found strict scrutiny of

Chapter 423’s exemptions for favored speakers and

purposes unnecessary because it did not consider

them proxies for content-based preferences. App.32a.

Finally, the Fifth Circuit held that the substantial

burden Chapter 423 imposed on newsgathering

provided no basis for strict scrutiny because “[f]rom

the beginning of our country the press has operated

without constitutional protection for [drones], and

[yet] the press has flourished.” App.34a (quoting

Branzburg v. Hayes, 408 U.S. 665, 698-99 (1972)).

The panel instead applied an anemic form of

intermediate scrutiny, upholding the Surveillance

Provisions because they further a “substantial

interest in protecting the privacy rights of [Texas]

citizens,” that “would be ‘achieved less effectively’

absent the Surveillance provisions,” and are

sufficiently tailored because the law bars “only

surveillance that could not be achieved through

ordinary means.” App.37a. The panel’s scrutiny did

not address either the uncontroverted evidence that

Chapter 423 burdens speech in many situations

where there is no expectation of privacy or the extent

to which other Texas’ laws already prohibit drone

surveillance where expectations of privacy do exist.

See App. 34a-37a.

Petitioners’ request for rehearing en banc was

denied. App.48a.

REASONS FOR GRANTING THE PETITION

I. The Fifth Circuit’s Unique Rejection of Due

Process Standing to Challenge a Vague,

Speech-Chilling Law Warrants Review

The Fifth Circuit’s denial of due process standing

warrants review because it applies a heightened

standard for Article III injury that is foreclosed by

several Court precedents, including Holder v.

Humanitarian Law Project and Babbitt v. United

Farm Workers Nat’l Union, and conflicts with rulings

of other circuits.

The court of appeals found, as the record required,

that the potential punishment of newsgathering

under Chapter 423’s vague terms was chilling

Petitioners’ speech and harming them economically.

It readily judged these injuries sufficient to establish

Petitioners’ standing to bring a facial First

Amendment challenge but held them insufficient to

establish standing for a pre-enforcement vagueness

challenge, App.12a-15a—even though Chapter 423’s

vagueness is inseparable from the First Amendment

injury inflicted by its threatened enforcement.

Allowing this ruling to stand will sow confusion

among the lower courts about the standing

requirements of Article III.

A. The Fifth Circuit decision contravenes

this Court’s holdings on Article III

standing.

1. The Fifth Circuit’s denial of journalists’

standing to bring a vagueness challenge to Chapter

423 before their arrest or prosecution rejects this

Court’s clear holding that Article III standing exists

to challenge the constitutionality of a speechrepressive law without “an actual arrest, prosecution,

or other enforcement action.” Susan B. Anthony List

v. Driehaus, 573 U.S. 149, 158 (2014). In such preenforcement cases, the Court has instructed that the

injury-in-fact requirement is satisfied where a

plaintiff intends to engage in constitutionally

protected activity that the law proscribes and there

exists “‘a credible threat of prosecution.’” Id. at 159

(quoting Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298 (1979)). Standing exists because the

mere threat of penal sanctions deters the exercise of

expressive freedoms “almost as potently as the actual

application of sanctions.” NAACP v. Button, 371 U.S.

415, 433 (1963); see also Virginia v. Am. Booksellers

Ass’n, Inc., 484 U.S. 383, 393 (1988) (finding Article

III standing met by plaintiffs’ “self-censorship[,] a

harm that can be realized even without an actual

prosecution”).

The Court has further instructed that a “credible

threat of prosecution” sufficient to confer standing is

simply a threat that’s “not imaginary or wholly

speculative.” Babbitt, 442 U.S. at 298, 302. A record of

past enforcement magnifies the credible threat of

future enforcement, see Driehaus, 573 U.S. at 164-65;

Holder v. Humanitarian L. Project, 561 U.S. 1, 16

(2010), but is not required. Rather, this Court has

repeatedly found that a sufficiently credible threat

exists to confer standing for a vagueness challenge

where a law enforcement official “has not disavowed

any intention of” enforcing the challenged restriction.

Babbitt, 442 U.S. at 302; Holder, 561 U.S. at 16

(finding standing for vagueness challenge where

government did not represent “that plaintiffs will not

be prosecuted”); cf. Am. Booksellers, 484 U.S. at 393

(finding standing to challenge speech restriction

where state did not disavow enforcement); Driehaus,

573 U.S. at 165 (same).

The Fifth Circuit’s decision flouts this precedent.

It bars standing to bring a facial due process challenge

against a vague statute that arguably proscribes

constitutionally protected expression until a plaintiff

is arrested or prosecuted, despite a demonstrated chill

on the plaintiff’s expression. App.12a-15a. It denied

standing here despite undisputed evidence that

journalists fearing prosecution stopped using drones

even when they were the only feasible way to capture

a newsworthy image, and that newspapers stopped

publishing newsworthy drone photography to avoid

potential liability. App.5a-7a, 14a.

The Fifth Circuit acknowledged the chilling impact

of the Surveillance Provisions, took note of

Respondents’ refusal to disavow enforcement, and

considered a past prosecution under Chapter 423 by

the Hays County District Attorney “‘good evidence’

that the likelihood of a future prosecution is not

‘chimerical.’” App.13a-16a, 18a (citing Driehaus, 573

U.S. at 164). It even declared this “substantial threat

of future enforcement” sufficient to establish

Petitioners’ standing to bring a facial First

Amendment challenge. App.14a-15a. The Fifth

Circuit nevertheless denied standing to challenge the

law’s vagueness under the Due Process Clause

because Petitioners “have never been arrested or

prosecuted for violating Chapter 423.” App.12a.

The heightened standing test imposed by the Fifth

Circuit for a pre-enforcement vagueness challenge to

a law that chills First Amendment rights disregards

both the failure-to-disavow standard the Court

adopted in Babbitt and American Booksellers, and the

importance of a history of past enforcement to the

Court’s standing analysis in Holder and Driehaus.

Moreover, the Court previously rejected the actualenforcement standing requirement the Fifth Circuit

imposed because “self-censorship” of protected speech

is “a harm that can be realized even without an actual

prosecution.” Am. Booksellers, 484 U.S. at 393. The

Court has repeatedly held that a plaintiff need not

“expose himself to actual arrest or prosecution to be

entitled to challenge a statute that he claims deters

the exercise of his constitutional rights.” Driehaus,

573 U.S. at 158 (citation omitted); see also, e.g.,

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129

(2007) (a plaintiff need not “expose himself to liability”

to challenge the “constitutionality of a law threatened

to be enforced”).

The

Fifth’s

Circuit’s

arrest-or-prosecution

standard warrants review because it directly

contravenes this controlling precedent, under which

Petitioners’ First Amendment chill and economic

injury plainly establishes their standing to pursue a

void-for-vagueness challenge to Chapter 423.

2. Review is also warranted of the Fifth Circuit’s

conclusion that a chill on speech and press caused by

a vague law is sufficient to bring a pre-enforcement

First Amendment claim but not to bring a preenforcement challenge to the vagueness that is

causing the harm. The Court has never required

different injuries to establish standing to assert

different constitutional defects in the same speechsuppressive law, and the Fifth Circuit’s imposition of

just such differing tests is irreconcilable with Holder.

Holder makes clear that the chill created by

potential enforcement of a vague law constitutes the

actual injury needed to challenge the constitutionality

of that law without regard to the nature of the law’s

alleged constitutional defect. See 561 U.S. at 15-16

(finding plaintiffs’ self-censorship sufficient injury to

confer standing for both First Amendment and voidfor-vagueness due process claims). Just as in this case,

the Holder plaintiffs showed that (a) government

officials had not disavowed enforcement of the

challenged law; (b) they had previously brought

prosecutions under that law; and (c) plaintiffs had

suppressed their expressive activities for fear of

punishment. Id. In concluding that the Holder

plaintiffs “should not be required to await and

undergo a criminal prosecution as the sole means of

seeking relief,” this Court held they had standing to

bring both a First Amendment challenge and a voidfor-vagueness due process challenge based on the

same actual injury. Id. at 14-15.

The

Fifth

Circuit’s

disparate

approach

fundamentally misapplies Article III’s injury

requirement where a First Amendment right is at

stake. Article III simply requires an actual harm to

the plaintiff caused by fear of punishment under an

unlawful statute. See California v. Texas, 593 U.S.

659, 670 (2021) (explaining that Article III injury

arises from the “likelihood of future enforcement”);

Gladstone, Realtors v. Village of Bellwood, 441 U.S.

91, 99 (1979) (basing Article III injury on “the

putatively illegal conduct of the defendant”). This

Court has consistently defined injury in fact as “an

invasion of a legally protected interest,” Spokeo, Inc.

v. Robins, 578 U.S. 330, 339 (2016) (citation omitted),

and has made similarly clear that “free speech” is one

such interest, id. at 340. As the record here amply

demonstrates, the threat of potential criminal liability

from an unconstitutional, speech-suppressive law

inflicts the concrete injury of self-censorship

regardless of why the law is unconstitutional. See Am.

Booksellers, 484 U.S. at 393.

Vague laws pose special dangers to expressive

freedoms, see infra, Section I.C, so it is no surprise

that courts frequently consider First Amendment and

void-for-vagueness due process challenges to a speechchilling law in parallel. See, e.g., Holder, 561 U.S. at

14; Hill v. Colorado, 530 U.S. 703, 714, 732 (2000);

Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 629 (1984).

If permitted to stand, the Fifth Circuit’s disparate

injury tests will create confusion about when a

demonstrable chill on First Amendment rights confers

standing to challenge a vague law and will multiply

litigation by divorcing First Amendment and due

process challenges to the same speech-chilling laws.

B. The Fifth Circuit decision conflicts with

the standing decisions of other circuits.

Petitioners are not aware of any other circuit that

requires an arrest or prosecution to challenge the

vagueness of a speech-chilling law as did the Fifth

Circuit here. Five other circuits have squarely held to

the contrary—that a would-be speaker does have

standing to mount a void-for-vagueness challenge to a

speech-suppressing law when responsible officials, as

here, do not disavow enforcement. Review is needed

because only this Court can resolve the conflict

created by the Fifth Circuit’s heightened standing

requirements and the Article III requirements of

other circuits.

The

Fifth

Circuit’s

uniquely

restrictive

requirement of an arrest or prosecution departs from,

and is irreconcilable with, the approach of its sister

circuits. The Fourth Circuit found that a political

advocacy group had established Article III injury in

fact and could proceed with a facial vagueness

challenge to a law restricting political advocacy where

the local district attorneys provided no indication they

would “refrain[] from prosecuting those who appear to

violate the plain language of the statute.” N.C. Right

to Life, Inc. v. Bartlett, 168 F.3d 705, 711 (4th Cir.

1999). As Judge Wilkinson concluded, a “credible

threat of prosecution” exists when a “non-moribund

statute . . . facially restricts expressive activity by the

class to which the plaintiff belongs.” Id. at 710

(cleaned up).

The Seventh Circuit has similarly held that an

advocacy group had standing to bring a facial

vagueness challenge against a political speech

restriction where the defendants “ha[d] not denied”

that the challenged law would apply to the plaintiff’s

desired speech. Ctr. for Individual Freedom v.

Madigan, 697 F.3d 464, 475 (7th Cir. 2012). The

refusal to disavow enforcement of the law produced

“an objectively reasonable fear” that the plaintiffs

would be penalized for their expressive activities. Id.

Other circuits are in accord. The Ninth Circuit

held that a nonprofit could challenge a speech

regulation as unconstitutionally vague even “absent a

threat or at least a warning that California might

prosecute” it. Cal. Pro-Life Council, Inc. v. Getman,

328 F.3d 1088, 1094 (9th Cir. 2003). The court

explained that a plaintiff who has censored his own

speech “need not show that the authorities have

threatened to prosecute him” because “the threat is

latent in the existence of the statute.” Id. at 1095

(citation omitted). The Eleventh Circuit found that a

plaintiff’s speech was sufficiently chilled to confer

standing by an allegedly vague regulation when the

defendant evinced an “intent to enforce the rule”

merely by “defending the challenged . . . rule in court.”

Harrell v. Fla. Bar, 608 F.3d 1241, 1257 (11th Cir.

2010). The “minimal probability” of enforcement was

enough to establish the plaintiff’s standing to bring

both a First Amendment and a void-for-vagueness due

process claim. Id. at 1257, 1260. And the D.C. Circuit

has explained that the “conventional background

expectation that the government will enforce” a

speech restriction can result in sufficient selfcensorship for a plaintiff to challenge the regulation

on vagueness grounds. Act Now to Stop War & End

Racism Coal. v. District of Columbia, 589 F.3d 433,

435 (D.C. Cir. 2009); see also Woodhull Freedom

Found. v. United States, 948 F.3d 363, 373 (D.C. Cir.

2020) (plaintiffs had standing to bring preenforcement First Amendment and vagueness

challenges because government “ha[d] yet to disavow

any intention to prosecute”).

Contrary to the position adopted by five other

circuits, the decision of the Fifth Circuit stands alone.

Its “arrest or prosecution” requirement cannot be

squared with this Court’s refusal-to-disavow standard

that other circuits consistently apply in similar

circumstances. Nor will this conflict resolve itself, as

the Fifth Circuit has already denied rehearing en banc

on this very issue. App.46a-48a.

C. If permitted to stand, the Fifth Circuit

decision will force speakers faced with a

vague law to choose between selfcensorship or risking prosecution.

Certiorari is particularly warranted because the

ruling below dangerously subverts basic First

Amendment rights and permits Chapter 423’s

demonstrated constitutional harms to persist. The

ruling also threatens to obstruct future preenforcement challenges to other vague laws chilling

the exercise of First Amendment rights.

The mere existence of a speech-restrictive law has

an obvious and predictable effect: it “place[s] the

hapless plaintiff between the Scylla of intentionally

flouting state law and the Charybdis of forgoing what

he believes to be constitutionally protected activity in

order to avoid becoming enmeshed in a criminal

proceeding.” Steffel v. Thompson, 415 U.S. 452, 462

(1974). A bedrock principle of this Court’s First

Amendment jurisprudence is that would-be speakers

must have an opportunity to vindicate their

expressive freedoms without first subjecting

themselves to punishment. Id. at 459. Any other rule

would permit the pernicious evils of self-censorship to

perpetuate. See Driehaus, 573 U.S. at 167-68

(explaining that prompt judicial review is needed to

avoid the “substantial hardship” of forcing plaintiffs

to choose between “refraining from core political

speech” or “risking costly . . . proceedings and

criminal prosecution”); Reno v. ACLU, 521 U.S. 844,

872 (1997) (recognizing that laws with criminal

sanctions “may well cause speakers to remain silent

rather than communicate even arguably unlawful

words, ideas, and images”).

This principle fully applies to vague laws because

such restrictions “unquestionably silence[] some

speakers whose messages would be entitled to

constitutional protection.” Reno, 521 U.S. at 874.

Until a vague law is invalidated or authoritatively

narrowed, it necessarily poses a “real and substantial”

threat that protected expression will be prosecuted.

Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). For

that reason, this Court has repeatedly mandated

“rigorous adherence” to due process requirements

when speech is involved “to ensure that ambiguity

does not chill protected speech.” FCC v. Fox Television

Stations, Inc., 567 U.S. 239, 253-54 (2012).

Vague laws also pose dual threats to due process.

First, vague laws fail to give a “person of ordinary

intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Grayned

v. City of Rockford, 408 U.S. 104, 108 (1972). Second,

they lend themselves to “arbitrary and discriminatory

enforcement.” Id.; see Kolender v. Lawson, 461 U.S.

352, 358 (1983) (vague statutes have “potential for

arbitrarily suppressing First Amendment liberties”);

Reno, 521 U.S. at 872. 5 These threats aren’t

5 This Court has emphasized time and again the grave threat

that vague statutes pose to freedom of expression. See, e.g.,

Stromberg v. California, 283 U.S. 359, 369 (1931); Herndon v.

Lowry, 301 U.S. 242, 258-59 (1937); Winters v. New York, 333

U.S. 507, 509-10 (1948); Baggett v. Bullitt, 377 U.S. 360, 372

(1964); Ashton v. Kentucky, 384 U.S. 195, 200 (1966); Keyishian

speculative here—the record demonstrates that

journalists and news organizations have both selfcensored and been blocked from newsgathering

because of Chapter 423. ROA.641, 647, 650-53, 672,

686-92.

The Fifth Circuit’s novel standing test for vague,

speech-restricting laws will preclude facial due

process challenges to vague laws and thereby violate

the principle that would-be speakers must have an

opportunity to vindicate their expressive freedoms.

Indeed, this case aptly illustrates the constitutional

dangers presented by the Fifth Circuit’s new due

process injury standard. By refusing to address

Chapter 423’s vagueness, the court of appeals left

Petitioners without guidance on whether capturing

and publishing newsworthy photos with a drone will

trigger criminal penalties. The record vividly

demonstrates the consequences of this ambiguity on

Petitioners’ speech and press rights.

One Petitioner, journalist Joseph Pappalardo, was

chilled from creating drone photographs for stories

ranging from Hurricane Harvey’s impact, to the

removal of homeless encampments, to urban sprawl,

to the routine dumping of dead and unwanted

animals—all stories where, as he testified, drone

images would have been critical to presenting the full

story. ROA.670-72. Another journalist testified to the

chill on his drone photography after being threatened

with arrest for using a drone to cover the aftermath of

v. Bd. of Regents, 385 U.S. 589, 603-04 (1967); Grayned, 408 U.S.

at 109; Fox, 567 U.S. at 253-54.

a deadly fire. App.6a. And a third presented evidence

of thousands of dollars in lost income because he could

not accept assignments seeking drone photography

and news outlets, including The Dallas Morning

News, refused to print his drone images for fear of

liability. App.7a.

Respondents have both refused to define whether

Chapter 423 reaches ordinary newsgathering and

refused to disavow applying Chapter 423 to

journalists. App.79a-80a. The Fifth Circuit’s decision

allows the chilling impact of Chapter 423 to loom over

Petitioners—stopping journalists from documenting

newsworthy events, preventing news organizations

from publishing newsworthy photos, and depriving

Texas residents of impactful journalism. Unless this

Court intervenes, the Fifth Circuit decision leaves

Petitioners and other future speakers no way to

vindicate their First Amendment rights against vague

criminal laws without subjecting themselves to the

risk of prosecution.

II. The Fifth Circuit’s Refusal to Apply Strict

Scrutiny to a Content- and Speaker-Based

Regulation of Speech Warrants Review

Certiorari should be granted because the Fifth

Circuit decision refuses to apply strict scrutiny under

circumstances where this Court has unambiguously

held it must be applied. It directly contravenes Reed

v. Town of Gilbert and, if permitted to stand, will sow

confusion about when a content-based regulation is

subject to strict scrutiny. Review is further needed

because the Fifth Circuit’s erroneous holdings allow

Chapter 423’s well-documented

newsworthy speech to continue.

suppression

A. The Fifth Circuit’s refusal to apply strict

scrutiny to a content-based speech

restriction contradicts decisions of this

Court and other circuits.

The Fifth Circuit decision rejects this Court’s clear

and consistent instruction that laws targeting speech

“based on its communicative content[ ] are

presumptively unconstitutional and may be justified

only if the government proves that they are narrowly

tailored to serve compelling state interests.” Reed v.

Town of Gilbert, 576 U.S. 155, 163 (2015); see also,

e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 395

(1992); Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd., 502 U.S. 105, 115-16 (1991);

Carey v. Brown, 447 U.S. 455, 462 (1980); Police Dep’t

v. Mosley, 408 U.S. 92, 95 (1972). Chapter 423 is

precisely such a law. It imposes a ban on capturing or

publishing drone images based on the “communicative

content” of the image—prohibiting those depicting “an

individual or privately owned real property” and

permitting those depicting only public property and

persons on public property. Tex. Gov’t Code

§§ 423.002(a)(15); 423.003(a), 423.004.

That the law applies only to drone photography

does not alter the First Amendment scrutiny required.

The “basic principles of freedom of speech and the

press, like the First Amendment’s command, do not

vary” when new technologies appear. Brown v. Ent.

Merchs. Ass’n, 564 U.S. 786, 790 (2011) (citation

omitted). Whether such a content-based regulation

“applies to creating, distributing, or consuming

speech,” also “makes no difference” to the First

Amendment’s protections. Id. at 790-92 & n.1; see,

e.g., United States v. Stevens, 559 U.S. 460, 464, 468

(2010) (holding “presumptively invalid” a contentbased law criminalizing, inter alia, the creation of

animal cruelty videos); 303 Creative LLC v. Elenis,

600 U.S. 570, 589 (2023) (explaining that the First

Amendment bars compelling a web designer to create

websites she finds objectionable).

The Fifth Circuit sidestepped the First

Amendment scrutiny Reed requires by construing

Chapter 423 not to be “content-based.” App.30a. The

court reasoned that 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.” Id. In its

view, this does not discriminate based on “what is in

the picture, but on the basis of how the picture is

taken.” Id.

Reed rejected this very reasoning. It struck down a

town’s regulation of outdoor signs that “identifie[d]

various categories of signs based on the type of

information they convey, then subject[ed] each

category to different restrictions.” 576 U.S. at 159.

The Court made clear that the town could regulate the

size, construction and other attributes of a sign only

“so long as it d[id] so in an evenhanded, contentneutral manner.” Id. at 172-73 (emphasis added).

Chapter 423 does not regulate “on the basis of how a

picture is taken” in any “even-handed, content-

neutral manner.” Quite to the contrary, it explicitly

regulates images based upon their specific content.

In refusing to require Texas to show that Chapter

423 is narrowly tailored to serve a compelling state

interest, the Fifth Circuit defied Reed and

contravened many other consistent holdings of this

Court. See id.; see also, e.g., Nat’l Inst. of Fam. & Life

Advocs. v. Becerra, 585 U.S. 755, 766 (2018); United

States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 811

(2000); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S.

115, 126 (1989).

Its rejection of strict scrutiny also conflicts with

holdings of other circuits. See, e.g., Ness v. City of

Bloomington, 11 F.4th 914, 924 (8th Cir. 2021)

(content-based restriction on creating photos of

children in parks failed strict scrutiny); Animal Legal

Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir.

2018) (content-based restriction on creating videos of

agriculture facility operations failed strict scrutiny).

Acknowledging the split it was causing, the Fifth

Circuit relied on the dissenting opinions from sister

circuits. App.26a (citing, e.g., People for the Ethical

Treatment of Animals, Inc. v. N.C. Farm Bureau

Fed’n, Inc., 60 F.4th 815, 845-47 (4th Cir.) (Rushing,

J., dissenting) (dissenting from majority’s application

of strict scrutiny to speaker- and viewpoint-based

recording ban), cert. denied, 144 S. Ct. 325 (2023), and

cert. denied sub nom. Stein v. People for the Ethical

Treatment of Animals, Inc., 144 S. Ct. 326 (2023)).

Review by this Court is plainly warranted.

B. The Fifth Circuit misconstrues City of

Austin and sows confusion about when a

content-based law must be subjected to

strict scrutiny.

In Reed, the Court resolved a circuit conflict over

what constitutes a content-based regulation requiring

strict scrutiny and definitively held that a law

applying “to particular speech because of the topic

discussed or the idea or message expressed” is content

based—regardless of the government’s justification or

motivation for enacting the law. 576 U.S. at 163-64.

The Fifth Circuit misreads City of Austin v. Reagan

National Advertising of Austin, LLC, 596 U.S. 61

(2022), to limit Reed’s holding in a way that authorizes

a radical redefinition of “content-based” regulations

requiring strict scrutiny. If permitted to stand, the

decision here will resurrect the very uncertainty that

Reed resolved.

1. City of Austin held that an ordinance was

content neutral when it distinguished between “signs

that advertise things that are not located on the same

premises as the sign” and “signs that direct people to

offsite locations,” because the “[t]he message on the

sign matter[ed] only to the extent that it inform[ed]

the sign’s relative location” much like “ordinary time,

place, or manner restrictions.” Id. at 64, 71. In

reaching this conclusion, the Court observed that “a

law is not content based simply because one must read

a sign to determine whether it is lawful under the

challenged rule,” but carefully distinguished laws that

draw “neutral, location-based lines” from those that

apply “to particular speech because of the topic

discussed or the idea or message expressed.” Id. at 69.

The Fifth Circuit invoked City of Austin to justify

its conclusion that Chapter 423 could be analyzed as

a content-neutral regulation of time, place, or manner

despite its content-based restrictions because those

restrictions apply only when a drone is flown above

eight feet. App.31a. In so doing, the Fifth Circuit

ignored City of Austin’s clear instruction that a law

necessarily is content based if it “single[s] out any

topic or subject matter for differential treatment,” as

Chapter 423 unambiguously does. City of Austin, 596

U.S. at 71.

The Fifth Circuit flouts City of Austin just as it

does Reed. Officials enforcing Chapter 423 do not look

at the content of a drone image to ascertain if it was

captured by a drone flying above or below eight feet;

they look at a drone image to determine if the content

captured depicts an individual or private property.

Chapter 423 fits squarely within Reed’s definition of a

content-based law.

That Chapter 423’s under-eight-feet exception is

itself content neutral does not alter the First

Amendment scrutiny required of its above-eight-feet

content preferences. The Court has long held that a

time, place, or manner restriction cannot

constitutionally discriminate based upon “either the

content or subject matter of speech.” Consol. Edison

Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 536 (1980);

see, e.g., Carey, 447 U.S. at 460-61 (applying strict

scrutiny to picketing regulation that exempted

picketing “a place of employment involved in a labor

dispute”); Mosley, 408 U.S. at 95 (requiring strict

scrutiny of a regulation prohibiting picketing based on

“subject matter”). In construing as permissibly

content neutral a law that “singles out” certain

content for “differential treatment,” the Fifth Circuit

decision directly contradicts City of Austin as well as

Reed.

2. The Fifth Circuit’s decision expands an existing

conflict among the circuits about when a need to

consider content renders a regulation content based

and subject to strict scrutiny under Reed and City of

Austin. Left unreviewed, its reasoning will deepen the

existing confusion.

Authoritative holdings of other circuits applying

City of Austin and Reed have required strict scrutiny

of laws making content or viewpoint distinctions like

the content distinctions in Chapter 423. For example,

the Sixth Circuit readily concluded that a sign

ordinance was content based because, like Chapter

423, it included exemptions for favored “topic[s]” or

“message[s],” including “real-estate signs.” Int’l

Outdoor, Inc. v. City of Troy, 77 F.4th 432, 436 n.1 (6th

Cir. 2023). The Seventh Circuit held that a law

prohibiting photography of hunters with the intent to

interfere with hunting was viewpoint based because it

“explicitly discriminate[d] based on the motives of

those documenting and monitoring hunting activity”

and could not be described as “agnostic as to content.”

Brown v. Kemp, 86 F.4th 745, 781-82 (7th Cir. 2023).

And a Ninth Circuit panel found content based a law

that restricted audiovisual recording, but exempted

recordings made “during a felony that endangers

human life” and recordings of a law enforcement

officer performing official duties. Project Veritas v.

Schmidt, 72 F.4th 1043, 1057 (9th Cir. 2023) vacated

pending en banc review, 95 F.4th 1152 (9th Cir. 2024).

The Fifth Circuit conflicts with each of these.

In contrast to the Sixth, Seventh, and Ninth

Circuits, the Second and Third Circuits have read City

of Austin to preclude application of strict scrutiny in

circumstances clearly required under Reed, as the

Fifth Circuit did here. The Second Circuit relied upon

City of Austin to hold that a law limiting the practice

of mental health counseling was content neutral

because it applied “only to speech having a particular

purpose, focus, and circumstance.” Brokamp v. James,

66 F.4th 374, 393 (2d Cir. 2023), cert. denied, 2024 WL

1241327 (U.S. Mar. 25, 2024). In so holding, the

Second Circuit failed to explain how the purportedly

neutral category of speech “addressing a mental

disorder or problem” differs from speech addressing

“professional anxieties” or “medical challenges” that it

deemed content-based categories. Id. Like the Fifth

Circuit, the court simply noted that City of Austin

permits laws to consider the “function or purpose” of

speech without automatically triggering strict

scrutiny. Id. at 396.

The Third Circuit in Mazo v. New Jersey Secretary

of State deemed content neutral a law that prohibits

candidates from using the name of a person or New

Jersey corporation in their “ballot slogans”—taglines

displayed next to candidate names on ballots—

without consent of the named party. 54 F.4th 124, 149

(3d Cir. 2022), cert. denied sub nom. Mazo v. Way, 144

S. Ct. 76 (2023). The Third Circuit interpreted City of

Austin as creating a new “category of permissible

neutral line-drawing that distinguishes between

speech based on extrinsic features.” Id. In the Third

Circuit’s view, this permitted consideration of “the

communicative content” of a ballot slogan to

“determine whether the consent requirement

applies.” Id. But unlike in City of Austin, the New

Jersey regulation “targets speech based on its

communicative content,” rather than upon a neutral

assessment of the time, place, or manner of its

presentation. 596 U.S. at 69 (brackets omitted).

Like the Second and Third Circuits, the Fifth

Circuit misapplied City of Austin to avoid Reed’s core

holding: that a law is content based when it “applies

to particular speech because of the topic discussed or

the idea or message expressed.” Reed, 576 U.S. at 163.

Under its reasoning, “a law banning the use of sound

trucks for political speech,” id. at 169, would be

deemed content neutral because one need only

determine whether the speech is political for the sake

of determining whether the sound truck ban applies.

Reed rejected this very example. Id.

This case presents an excellent vehicle for the

Court to dispel the growing confusion about when a

content-based distinction demands strict scrutiny

following City of Austin. The summary judgment

record is fully developed and undisputed, and the

issue is squarely presented by Chapter 423’s multiple

content-based provisions.

C. The Fifth Circuit’s refusal to apply strict

scrutiny to a law that favors some

speakers and purposes over journalists

and news reporting further conflicts with

decisions of this Court and other circuits.

1. This Court has made clear that strict scrutiny

applies where discrimination among speakers or

purposes serves as a proxy for content discrimination.

Citizens United v. FEC, for example, struck down

limitations on political campaign contributions and

expenditures that differentiated among categories of

individuals and corporations because the government

cannot “tak[e] the right to speak from some and giv[e]

it to others.” 558 U.S. 310, 340-41 (2010).

The very next year, Sorrell v. IMS Health Inc.

subjected to heightened scrutiny a law prohibiting

pharmaceutical companies from using certain

pharmacy records for marketing purposes while

permitting a “wide range of other speakers,” such as

academic organizations, to use those same records to

inform their own speech. 564 U.S. 552, 564 (2011).

Such scrutiny was necessary because the law “on its

face burden[ed] disfavored speech by disfavored

speakers.” Id.; see also Playboy, 529 U.S. at 812

(holding that laws restricting “the expression of

specific speakers contradict basic First Amendment

principles”); Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 658 (1994) (holding that “laws favoring some

speakers over others demand strict scrutiny when the

legislature’s speaker preference reflects a content

preference”).

Chapter 423 favors some speakers over others in

the very same way. It includes myriad exemptions for

preferred categories of drone photographers and uses

of drone images. For instance, it permits a “professor”

at “an institution of higher education” to capture and

publish photos of individuals and private property if

done for “scholarly research,” and allows a “real estate

broker” to create and disseminate such images for

“marketing . . . of real property.” Tex. Gov’t Code

§ 423.002(a)(1), (13). The statute’s “speaker

preference reflects a content preference,” Turner, 512

U.S. at 658, and it draws the same speaker-based

distinctions this Court held unconstitutional in

Sorrell, where a law allowed “journalists” and

“researchers,” but not “marketers,” to use

pharmaceutical data, 564 U.S. at 563-64, 573

(“marketing” is “speech with a particular content”).

Chapter 423’s purpose preferences are similarly

proxies for content discrimination. It exempts, for

example, photos taken for the purpose of the “practice

of engineering;” “in connection with oil pipeline

safety;” for “assessing vegetation growth” or for “fire

suppression.” Tex. Gov’t Code § 423.002(a)(5)(C),

(a)(11). As a result, Chapter 423 does not apply to all

content, imposing instead “an obvious subject-matter

distinction” on categories of speech that it favors. City

of Austin, 596 U.S. at 74.

The Fifth Circuit’s refusal to apply strict scrutiny

simply disregarded the law’s speaker discrimination.

It described Chapter 423 as distinguishing “among

photographers” but “not among photographs,”

App.32a, thereby blinking away the content

preferences made through the law’s speaker-based

permissions.

The Fifth Circuit’s rejection of strict scrutiny for

Chapter 423’s speaker-based restrictions conflicts

with Sorrell, Citizens United, and opinions from the

Fourth and Seventh Circuits. See People for the

Ethical Treatment of Animals, 60 F.4th at 831

(applying strict scrutiny to a law banning recording by

employees but not non-employees); Surita v. Hyde,

665 F.3d 860, 870 (7th Cir. 2011) (stating that

speaker-based restrictions that favor or disfavor

speech are also content based). Instead of applying

strict scrutiny, the Fifth Circuit aligns with the Ninth

Circuit. See App.35a; Doe v. Harris, 772 F.3d 563, 57576 (9th Cir. 2014) (applying intermediate scrutiny to

a speaker-based law requiring sex offenders to

The Fifth Circuit’s failure to require Texas to

demonstrate that the speaker and purpose

distinctions in Chapter 423 are narrowly drawn to

achieve a compelling state interest warrants review

because it contravenes controlling precedent of this

Court and conflicts with authoritative decisions of

other circuits.

2. This aspect of the Fifth Circuit decision

particularly calls out for review because Chapter 423’s

speaker-based distinctions favor commercial and

academic speech on private matters over speech by

the press on matters of public concern. Such laws

demand strict and independent judicial scrutiny

because a free press is necessary to keep the public

informed, and “an informed public is the essence of

working democracy.” Minneapolis Star & Trib. Co. v.

Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983).

The First Amendment protects media entities from

“hav[ing] their voices diminished” while the

government elevates the voices of other speakers.

Citizens United, 558 U.S. at 352. The Court has thus

held that unequal treatment of the press can be

unconstitutional even without “evidence of an

improper censorial motive.” Ark. Writers’ Project, Inc.

v. Ragland, 481 U.S. 221, 228 (1987).

The Fifth Circuit diminished the Press Clause

concerns raised by Chapter 423 with the observation

that “the First Amendment does not guarantee the

press a constitutional right of special access to

information” and “does not invalidate every incidental

burdening of the press.” App.33a. While “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,” Cohen v. Cowles Media Co., 501 U.S.

663, 669 (1991) (emphasis added), “differential

treatment, unless justified by some special

characteristic of the press, suggests that the goal of

the regulation is not unrelated to suppression of

expression,” Minneapolis Star, 460 U.S. at 585.

The exemption-riddled Surveillance Provisions

upheld by the Fifth Circuit cannot plausibly be

deemed “generally applicable” in any meaningful

sense. As this Court has explained in another First

Amendment context, laws are not “generally

applicable, and therefore trigger strict scrutiny under

the Free Exercise Clause, whenever they treat any

comparable secular activity more favorably than

religious exercise.” Tandon v. Newsom, 593 U.S. 61,

62 (2021) (per curiam). Even if the Press Clause

tolerated press-burdening laws with a handful of

“isolated exceptions,” Minneapolis Star, 460 U.S. at

583 n.5, Chapter 423’s exemptions for twenty-one

favored speakers and uses—excluding the press—

make it anything but generally applicable, cf. Barr v.

Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335,

2346-47 (2020) (plurality opinion) (robocall ban was

subject to strict scrutiny due to single exception).

Nor is the press burden imposed by Chapter 423

merely “incidental.” Drones are “a superior method of

aerial photography in many circumstances,”

ROA.685, but the law’s enactment chilled journalists

from using them and restricted their ability to report

on national disasters, homelessness, environmental

harms, and other important stories, App.52a. Because

no alternative to drone photography exists in many

situations, prohibiting their use for newsgathering

prevents many newsworthy photos from being

captured at all. ROA.672.

Chapter 423’s green lighting of nearly every

professional use of drone images except for reporting

the news disproportionately burdens journalists and

news organizations and impermissibly burdens press

freedom. Review is needed because the Fifth Circuit’s

holding that strict scrutiny is not required when a

speaker-based law advantages others over the press

permits “differential treatment [that] cannot be

squared with the First Amendment.” Citizens United,

558 U.S. at 353.

D. If permitted to stand, the Fifth Circuit

decision sanctions an ongoing chill on

reporting newsworthy information.

The Fifth Circuit decision also calls out for review

because it empowers Texas to burden substantially

more newsgathering than necessary to serve the

stated government interest of privacy protection. The

uncontradicted record shows that the enactment of

Chapter 423 has caused journalists to be, among other

things, threatened with arrest for photographing the

aftermath of a fatal fire from a public sidewalk, barred

from documenting a publicly funded construction

project, chilled from gathering and publishing

newsworthy drone photos, and deprived of income.

App.6a-7a, 54a. Allowing Chapter 423 to remain in

place will inflict long-term damage to the First

Amendment rights of both journalists and their

readers.

Chapter 423 forecloses the ability of Texas

journalists to gather the news using a key method of

modern newsgathering technology for the purported

purpose of protecting privacy. Yet the law prohibits a

massive amount of drone photography where no

reasonable expectation of privacy exists—such as

photos of buildings in plain public view, failed

infrastructure, (ROA.533, 689), flooding (ROA.689),

the winter storm and grid collapse of 2021 (ROA.662,

688), and construction of a publicly funded stadium

(ROA.690). No reasonable expectation of privacy

exists for every parcel of private property in Texas,

but (save for favored speakers and purposes) Chapter

423 indiscriminately applies to all drone images of

private property, even images depicting newsworthy

events and implicating no privacy interests. Given the

poor fit between the interests the Surveillance

Provisions are said to advance and the large swath of

speech they burden, the law could not withstand any

level of scrutiny, properly applied.

Even if Chapter 423 were content neutral, the

variant of intermediate scrutiny the Fifth Circuit used

to uphold the law departs dramatically from the

meaningful review this Court has defined as

intermediate scrutiny—review that demands “a close

fit between ends and means” to stop government from

silencing speech for the sake of convenience or

efficiency. McCullen v. Coakley, 573 U.S. 464, 486

(2014). The Fifth Circuit acknowledged that a

regulation survives intermediate scrutiny only if it

does not burden substantially more speech than

necessary to advance a substantial government

interest, App.35a-36a (citing Turner, 512 U.S. at 662),

but then quickly cast off that principle. The court of

appeals merely recited that the law bars “only

surveillance that could not be achieved through

ordinary means,” App.37a, but never assessed

whether Texas had simply found “the chosen route . . .

easier,” McCullen, 573 U.S. at 494-95.

The Fifth Circuit required no demonstration that

Chapter 423 achieves “a close fit between ends and

means” and never considered whether existing Texas

laws fail to protect the privacy interests invoked as

justification for the new law. In fact, Texas has a full

panoply of privacy protections in its common-law

privacy torts, trespass and voyeurism statutes, and

other laws. See, e.g., Billings v. Atkinson, 489 S.W.2d

858, 861 (Tex. 1973); Tex. Penal Code §§ 21.17, 30.05.

The record shows that such laws have been used by

law enforcement to protect against harms flowing

from improper drone use. ROA.1240. The Fifth

Circuit’s anemic version of intermediate scrutiny

underscores the need for clarification from this Court

on the scrutiny the First Amendment demands for

content-based laws that significantly burden the

press.

Without this Court’s intervention, journalists and

news organizations remain chilled from using drones

to create and publish newsworthy speech, while

favored speakers—such as professors, engineers,

pipeline operators, insurance agents, and real estate

brokers—use drone photography to advance their

commercial interests. The press, the public, and the

First Amendment suffer ongoing harm. This situation

warrants review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Leah M. Nicholls

PUBLIC JUSTICE

1620 L Street NW

Suite 630

Washington, DC 20036

Mickey H. Osterreicher

General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

FINNERTY OSTERREICHER

& ABDULLA

70 Niagara Street

Buffalo, NY 14202

Alicia Wagner Calzada

Deputy General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

ALICIA WAGNER CALZADA,

PLLC

926 Chulie Drive

Suite 16

San Antonio, TX 78216

April 9, 2024

James A. Hemphill

Counsel of Record

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Avenue

Suite 2700

Austin, Texas 78701

(512) 480-5762

jhemphill@gdhm.com

David A. Schulz

Tobin Raju

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A—Fifth Circuit’s Opinion (January

10, 2024) ...............................................................

APPENDIX B—Fifth Circuit’s Judgment (January

10, 2024) ...............................................................

46a

APPENDIX C—Fifth Circuit’s Order Granting

in Part and Denying in Part Petition for

Rehearing (January 10, 2024).............................

48a

APPENDIX D—District Court’s Order on

Summary Judgment (March 28, 2022) ...............

49a

APPENDIX E—District Court’s Final Judgment

(April 13, 2022) ....................................................

87a

APPENDIX F—Texas Government Code

§§ 423.001-423.004, 423.006, 423.0045, 423.0046 ..

88a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 22-50337

————

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 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 asapplied 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.

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

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).

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 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

TEX. GOV’T CODE § 423.003(a).

Id. § 423.002(a)(1)–(21).

Id. §§ 423.002(a)(3) & (8).

Id. § 423.002(a)(1).

Id. § 423.002(a)(14).

Id. § 423.002(a)(15).

Id. § 423.002(a)(6).

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:

(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:

Id. § 423.0045(b).

Id. § 423.0045(a)(1-a).

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

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 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

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

or Detention Facility; Creating a Criminal Offense, 2023 Tex. Sess.

Law Serv. Ch. 591 (H.B. 3075).

TEX. GOV’T CODE § 423.0046(b).

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).

TEX. GOV’T CODE §§ 423.003(b), 423.0045(d), 423.0046(d);

TEX. PENAL CODE § 38.115(d).

TEX. GOV’T CODE § 423.006(a).

[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

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

the media. Wade “lost thousands of dollars” due to the

Rangers’ refusal.

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 stateand county-level officials: two Texas heads of lawenforcement 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 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.

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

Westfall v. Miller, 77 F.3d 868, 873 n.1 (5th Cir. 1996).

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.

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.

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.

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.

We review summary-judgment rulings de novo,

applying the same standard as the district court.21

Nat’l Press Photographers Ass’n v. McCraw, 504 F. Supp. 3d

568, 591 (W.D. Tex. 2020).

Nat’l Press Photographers Ass’n v. McCraw, 594 F. Supp. 3d

789, 813 (W.D. Tex. 2022).

Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533,

538 (5th Cir. 2004).

10a

“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

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

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

Id. at 538–39.

Texas All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir.

2022).

See Davis v. Sumlin, 999 F.3d 278, 279 (5th Cir. 2021)

(“[F]ederal courts must do jurisdiction first.”).

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014)

(quoting U.S. CoNST., art. III, § 2).

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

298 (1979) (alteration accepted) (internal quotation marks omitted).

11a

[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.

“An injury sufficient to satisfy Article III must be

concrete and particularized and actual or imminent,

not conjectural or hypothetical. An 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

Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020),

as revised (Oct. 30, 2020) (citation omitted).

See Speech First, 979 F.3d at 330 (citing Lujan v. Def’s of

Wildlife, 504 U.S. 555, 560–61 (1992)).

Id.

Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202,

209 (5th Cir. 2011).

Susan B. Anthony List, 573 U.S. at 158 (internal quotation

marks and citation omitted).

12a

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 preemptively challenge Chapter 423 under the Due Process

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 voidforvagueness 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.

13a

Clause. 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

See id. at 159

Justice v. Hosemann, 771 F.3d 285, 294 (5th Cir. 2014).

Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir. 2021).

Speech First, 979 F.3d at 330 (citing Susan B. Anthony List,

573 U.S. at 161–64).

Barilla, 13 F.4th at 433 (emphasis added).

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660

(5th Cir. 2006).

14a

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

“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)).

See Speech First, 979 F.3d at 330.

15a

threat of future enforcement exists absent “compelling

contrary evidence.”41

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

Barilla, 13 F.4th at 433.

709 F.2d 922, 930 (5th Cir. 1983).

Id.

KVUE, Inc., 709 F.2d at 930.

16a

Plaintiffs. 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 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.

Even if Plaintiffs suffered an injury, Defendants

argue that such injury is not fairly traceable to their

conduct. After all, Defendants have never enforced

Babbitt, 442 U.S. at 302.

461 U.S. 95, 105 (1983).

See id.

Susan B. Anthony List, 573 U.S. at 164.

17a

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

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

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).

TEX. GOV’T CODE § 411.002(a).

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 preenforcement Second Amendment challenge to Texas firearms law).

TEX. GOV’T CODE § 411.032; Graf v. State, 925 S.W.2d 740,

742 (Tex. App. 1996).

18a

423. 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 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

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”).

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.”).

Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719,

736 (1980).

19a

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.

“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 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 imple-

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).

Whole Woman’s Health, 142 S. Ct. at 532.

City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).

Lewis, 28 F.4th at 663.

Id. (quoting Ex parte Young, 209 U.S. 123, 157 (1908)).

20a

mented.” 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 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

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).

Id. (quoting Tex. Democratic Party v. Abbott, 978 F.3d 168,

179 (5th Cir. 2020)).

Id. (quoting City of Austin, 943 F.3d at 1000).

Id.

Tex. Democratic Party, 978 F.3d at 179 (quoting City of

Austin, 943 F.3d at 1002) (internal quotation marks omitted); see

21a

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

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

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”).

See supra § II.A.1.

City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019).

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).

See Paxton, 943 F.3d at 1002 (stating that they are “not

identical”).

Okpalobi v. Foster, 244 F.3d 405, 417 n.17 (5th Cir. 2001) (en

banc).

22a

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 employ a more categorical

Russell v. Jones, 49 F.4th 507, 512 (5th Cir. 2022).

Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir.

1999).

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.”).

23a

approach, 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.

Moving to the merits, we now consider whether the

Surveillance and No-Fly provisions facially violate the

First Amendment. They do not.

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

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”).

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”).

TEX. GOV’T CODE §§ 423.0045 & 423.0046; TEX. PENAL CODE

§ 38.115.

24a

protection.” 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 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

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)).

25a

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.

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

Zemel v. Rusk, 381 U.S. 1, 16–17 (1965).

TEX. GOV’T CODE § 423.003(a).

Id. § 423.002(a).

26a

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,

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

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).

See id. at 845–47 (Rushing, J., dissenting).

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)).

See id. at 1069 (Christen, J., dissenting).

679 F.3d 583, 595 (7th Cir. 2012).

27a

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 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

Id.

Id. at 610 (Posner, J., dissenting).

Id. at 614.

848 F.3d 678, 690 (5th Cir. 2017).

Id. at 688.

Id. at 688–89 (quoting Alvarez, 679 F.3d at 596).

28a

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 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

Id. at 699.

Id. (citing Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)).

Id. (internal quotation marks omitted).

Kleinman v. City of San Marcos, 597 F.3d 323, 328 (5th Cir.

2010).

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).

29a

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 feet)—both of which fall under the

umbrella of intermediate scrutiny.101 Intermediate

See 848 F.3d at 690.

221 F.3d 158, 188 (5th Cir. 2000)

100

101

Id. at 191.

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

30a

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 using a drone, so long as the drone is flown

at a height below eight feet— roughly the height of a

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.

31a

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 contentbased 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-dronesurveillance 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).

32a

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

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.

33a

undisputed record evidence shows that photojournalists like Calzada and Wade find drones to be a very

helpful technology in their trade.

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

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.

34a

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

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

116

Id. at 684–85.

117

Id. at 698–99.

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).

35a

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 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

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).

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.

36a

‘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 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,

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.

132

Id. at 192–93.

133

Id. at 192.

37a

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]

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

134

See id. at 192–93.

135

TEX. GOV’T CODE § 423.002(a)(14).

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.

38a

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.

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

138

TEX. GOV’T CODE § 423.002(a)(15).

139

PETA, 60 F.4th at 845 (Rushing, J., dissenting).

140

See Nat’l Press Photographers Ass’n, 504 F. Supp. 3d at 591.

39a

preemption grounds. 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

141

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’ 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

141

See Keyes v. Gunn, 890 F.3d 232, 235–36 (5th Cir. 2018).

142

Smatresk, 73 F.4th at 310.

143

See id.

40a

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 manifest.”147 States’ police powers, including those

necessary to safeguard the protection of citizens, fall

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).

147

Id. (cleaned up).

41a

into this category. 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

148

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 regulatory text addressing preemption is

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).

42a

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

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-ofUnmanned-Aircraft-Systems-Fact-Sheet.pdf.

157

See R.J. Reynolds, 479 U.S. at 149.

43a

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 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

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.

44a

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

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.”

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.”).

162

United States v. Salerno, 481 U.S. 739, 745 (1987).

45a

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 asapplied 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 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.

46a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 22-50337

————

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

————

ON PETITION FOR REHEARING EN BANC

Before CLEMENT, ELROD, and WILLETT, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and was argued by counsel.

IT IS ORDERED and ADJUDGED that the judgment

of the District Court is AFFIRMED IN PART and

REVERSED IN PART, and VACATED IN PART, and

47a

the cause is REMANDED to the District Court for

further proceedings in accordance with the opinion of

this Court.

IT IS FURTHER ORDERED that appellees/crossappellants pay to appellants/cross-appellees the costs

on appeal to be taxed by the Clerk of this Court.

48a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 22-50337

————

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

————

UNPUBLISHED ORDER

Before CLEMENT, ELROD, and WILLETT, Circuit Judges.

PER CURIAM:

IT IS ORDERED that Plaintiffs’ petition for panel

rehearing is GRANTED IN PART and DENIED IN

PART.

IT IS FURTHER ORDERED that Defendant

Higgins’s petition for panel rehearing is DENIED.

49a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

————

1:19-CV-946-RP

————

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION,

TEXAS PRESS ASSOCIATION, and JOSEPH PAPPALARDO,

Plaintiffs,

STEVEN MCCRAW, in his official capacity as Director of

Texas Department of Public Safety; DWIGHT MATHIS,

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.

————

ORDER

Before the Court are cross-motions for summary

judgment filed by Plaintiffs National Press Photographers

Association (“NPPA”), Texas Press Association (“TPA”),

and Joseph Pappalardo’s (“Pappalardo”) (collectively,

“Plaintiffs”), (Pls.’ Mot., Dkt. 63); and Defendants Steven

McCraw (“McCraw”), Dwight Mathis (“Mathis”),1 and

Wes Mau’s (“Mau”) (collectively, “Defendants”) (Defs.’

Mot., Dkt. 65); and the parties’ respective responsive

briefing. Also before the Court are East Texas Ranch’s

In 2020, Mathis replaced predecessor and original Defendant

Ron Joy in his role as Chief of Texas Highway Patrol.

50a

(“Movant”) Motion to Intervene, (Mot. Intervene, Dkt.

60); and Amici Texas Association of Broadcasters

(“TAB”) and Reporters Committee for Freedom of the

Press’s (“RCFP”) Motion for Leave to File Amicus

Brief, (Mot. Leave, Dkt. 71). Having considered the

parties’ arguments, the evidence, and the relevant law,

the Court will grant Plaintiffs’ motion for summary

judgment, deny Defendants’ motion for summary

judgment, deny the motion to intervene, and grant the

motion for leave to file an amicus brief.

I. BACKGROUND

This case concerns journalists’ right under the

First Amendment to operate unmanned aerial vehicles

(“UAVs”), otherwise known as drones, and publish the

resulting images. Plaintiffs challenge the constitutionality

of two sets of provisions of Chapter 423 of the Texas

Government Code (“Chapter 423”), passed in 2013 and

amended in 2015. (Pls.’ Mot. Summ. J., Dkt. 63, at 15).

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.).

Texas Government Code Sections 423.002, 423.003,

423.004, and 423.006 (together “Surveillance Provisions”)

impose civil and criminal penalties on UAV image

creation. Section 423.003 imposes criminal and civil

penalties by declaring it unlawful to use “an unmanned

aircraft to capture an image of an individual or privately

owned real property . . . with the intent to conduct

surveillance on the individual or property captured in

the image.” TEX. GOV’T CODE § 423.003(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. TEX. GOV’T CODE § 423.006(a).

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Section 423.002 exempts certain uses of UAVs from

liability under the Surveillance Provisions but does

not exempt newsgathering. 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 speakerbased 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. (Pls.’ Mot. Summ. J., Dkt. 63, at 10). Plaintiffs

also argue that the Surveillance Provisions are unconstitutionally vague and overbroad because the term

“surveillance” is not defined. (Id. at 11).

Texas Government Code Sections 423.0045 and

423.0046 (together “No-Fly Provisions”) 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. TEX. GOV’T CODE § 423.0045, § 423.0046.

Critical infrastructure facilities are defined to include

oil and gas pipelines, petroleum and alumina refineries,

water treatment facilities, and natural gas fractionation

and chemical manufacturing plants. TEX. GOV’T CODE

§ 423.0045(a). In 2017, critical infrastructure was

expanded though legislative amendments to include

animal feeding operations, oil and gas drilling sites,

and chemical production facilities, among others. Id.

The 2017 amendments also defined a “sports venue” to

include any arena, stadium, automobile racetrack,

coliseum, or any other facility that has seating capacity

of more than 30,000 people and is “primarily used” for

one or more professional or amateur sport or athletics

events. TEX. GOV’T CODE §§ 423.0045 –046; 2017 Tex.

52a

Sess. Law Serv. Ch. 1010 (H.B. 1424) (Vernon’s).

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.

(Pls.’ Mot. Summ. J., Dkt. 63, at 16); 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.” TEX.

GOV’T CODE §§ 423.0045(c), 423.0046(c). Plaintiffs

argue that allowing UAVs to be used for commercial

purposes but not newsgathering purposes constitutes

content-based discrimination in violation of the First

Amendment. (Pls.’ Mot. Summ. J., Dkt. 63, at 11).

Plaintiffs allege the No-Fly Provisions are unconstitutionally vague and overbroad because “commercial

purpose” is not defined and is understood to exclude

newsgathering. (Id. at 17). Plaintiffs claim this leaves

visual journalists unable to determine if they are

permitted to use UAVs under the No-Fly Provisions.

Plaintiffs are one individual journalist and two

media organizations. Pappalardo is a Texas reporter

who owns a drone and was previously certified to

operate a UAV in the national airspace by the FAA.

(Pappalardo Decl., Dkt. 63, at 150). Pappalardo states

that the Chapter 423 provisions have chilled his

newsgathering because he is concerned about liability

under its provisions. (Id. at 153). Because of the law,

he has foregone opportunities to report on “events

related to Hurricane Harvey, the removal of homeless

encampments, the way gridlock hampers emergency

responders, and illegal poaching in urban areas.” (Mot.

Summ. J., Dkt. 63, at 17; Pappalardo Decl., Pls.’ Ex. 5,

¶ 14). He fears that “using a [drone] for journalistic

purposes would put [him] at risk of criminal penalties

53a

and subject [him] to liability in a civil lawsuit.”

(Pappalardo Decl., Dkt. 63, at 150).

NPPA is a national organization that represent the

interests of visual journalists, including within Texas.

(Ramsess Decl., Dkt. 63, at 157). 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. at 159).

Plaintiffs allege that NPPA members regularly use

UAVs for newsgathering. (Id. at 157). Plaintiffs argue

that NPPA members’ newsgathering is chilled by the

Chapter 423 provisions. (Pls.’ Mot. Summ. J., Dkt. 163,

at 19). NPPA advises its members on legal issues that

face them in their work as journalists. (Id. at 18). 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.). TPA is one of the oldest and

largest newspaper trade organizations in the country

with more than 400 member newspapers across the

state of Texas. (Baggett Decl., Dkt. 63, at 122).

Plaintiffs allege that Chapter 423 has led some its

members “to avoid the use of drone photography” in

their publications. (Id.).

In addition to the impacts on NPPA and TPA as

organizations, individual members have also felt the

effects of Chapter 423. NPPA member, employee of

TPA member San Antonio Express-News, and video

journalist Guillermo Calzada (“Calzada”) has an FAA

Part 107 Remote Pilot Certificate, which qualifies him

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to operate UAVs in the national airspace, and he owns

a registered drone. (Calzada Decl., Dkt. 63, at 131;

Calzada Certificate of Authorization, Dkt. 63, at 145).

On July 24, 2018, Calzada used his UAV to report on

an arson fire at an apartment complex in San Marcos.

(Calzada Decl., Dkt. 63, at 131–32). Agents from the

Bureau of Alcohol, Tobacco, Firearms and Explosives

stopped Calzada and called San Marcos police. (Id. at

132). 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 136).

NPPA member and news photographer Brandon

Wade (“Wade”), whose clients include TPA members, is

also qualified to operate UAVs in the national airspace

and owns a UAV. (Wade Decl., Dkt. 63, at 165).

Plaintiffs assert that Chapter 423’s provisions have

affected Wade’s use of UAVs on several occasions. (Id.

at 167–70). 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

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