Amicus Curiae Brief — National Press Photographers Association, Petitioner v. Kelly Higgins, in His Official Capacity as District Attorney of Hays County, Texas, et al.

No. 23-1105

IN THE

Supreme Court of the United States

____________________

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION,

Petitioners,

V.

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

____________________

BRIEF OF AMICI CURIAE TEXAS

ASSOCIATION OF BROADCASTERS AND 17

MEDIA ORGANIZATIONS IN SUPPORT OF

PETITIONERS

____________________

Joel Reese

Thomas S.

Counsel of Record

Leatherbury

Bret Rosenthal

THOMAS S.

Margaret Terwey

LEATHERBURY LAW,

REESE MARKETOS LLP

PLLC

750 N. St. Paul Street

Cumberland Hill

Suite 600

School Building

Dallas, TX 75201

1901 N. Akard St

Tel.: (214) 382-9810

Dallas, TX 75201

joel.reese@rm-firm.com

Counsel for Amici

Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICI CURIAE ..............................1

I.

SUMMARY OF THE ARGUMENT ............7

II.

ARGUMENT .............................................10

A.

The use of image capturing drones is

essential to fulfilling broadcasters’

mission to timely communicate lifesaving information to the public .....10

B.

Chapter 432 has chilled the speech of

TAB’s station members because

members choose self-censorship over

the risk of prosecution .....................15

C.

Using helicopters to capture aerial

images is not a viable alternative to

drone use for Texas broadcasters ....22

III.

CONCLUSION ..........................................24

i

TABLE OF AUTHORITIES

Cases

NAACP v. Button,

371 U.S.415 (1963) .................................................21

Steffel v. Thompson,

415 U.S. 452 (1974) ................................................16

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

484 U.S. 383 (1988) ................................................21

Rules

Tex. Gov’t Code § 423 ........................... 6-10, 13, 15-22

ii

INTERESTS OF AMICI CURIAE

Amici Texas Association of Broadcasters along

with 17 media organizations file this amicus brief in

support of Petitioners.1

The Texas Association of Broadcasters (“TAB”)

is a nonpartisan, not-for-profit, 501(c)(3) organization

that represents the interests of over 1,200 free, overthe-air radio and television stations in Texas. TAB

was formed in 1953 to promote and protect a favorable

economic and regulatory climate for broadcasting and

to educate both its members and the public about the

public benefit and importance of free, over-the-air

broadcast operations. TAB works with non-profits

and government agencies to distribute public service

messages. TAB also partners with the Federal

Communications Commission to supply inspectors

who review stations for compliance with FCC

regulations.

TAB and its members frequently

collaborate with local governments and other

members of their community to provide essential

information, including AMBER alerts, emergency

warnings, and spearhead efforts to raise money for

charities and disaster relief. This uniquely positions

TAB as an organization that works with its station

members to promote public good and coordinate with

local government agencies to distribute life-saving

1 Counsel for amici curiae certify, pursuant to Rule 37.6, that

this brief was not authored in whole or part by counsel for any

of the parties; no party or party’s counsel contributed money for

the brief; and no one other than amici and their counsel have

contributed money for this brief. Counsel for amici provided

notice to counsel of record on May 3, 2024, pursuant to S. Ct. R.

37.2.

1

information rapidly to its members and then to the

public.

The Reporters Committee for Freedom of the

Press is an unincorporated nonprofit association. The

Reporters Committee was founded by leading

journalists and media lawyers in 1970 when the

nation’s news media faced an unprecedented wave of

government subpoenas forcing reporters to name

confidential sources. Today, its attorneys provide pro

bono legal representation, amicus curiae support, and

other legal resources to protect First Amendment

freedoms and the newsgathering rights of journalists.

The Center for Investigative Reporting (“CIR”)

is a not-for-profit, 501(c)(3) organization. It is the

nation’s oldest nonprofit investigative newsroom in

the country that runs the brands Mother Jones,

Reveal, and CIR Studios. Mother Jones is a readersupported news magazine and website known for

ground-breaking

investigative

and

in-depth

journalism on issues of national and global

significance.

Reveal

produces

investigative

journalism for the Reveal national public radio show

and podcast, and CIR Studios produces feature length

documentaries distributed on Netflix, Hulu and other

streaming channels. Reveal often works in

collaboration with other newsrooms across the

country. CIR has received multiple awards for its

reporting. In the past several years, CIR has been a

Pulitzer Prize finalist, received three Edward R.

Murrow Awards, a duPont Award and a Peabody for

its journalism under the Reveal brand.

The Media Institute is a 501(c)(3) nonprofit

foundation specializing in communications policy

2

issues founded in 1979. The Media Institute exists to

foster three goals: freedom of speech, a competitive

media and communications industry, and excellence

in journalism. Its program agenda encompasses all

sectors of the media, from print and broadcast outlets

to cable, satellite, and online services.

The Society of Environmental Journalists is the

only North-American membership association of

professional journalists dedicated to more and better

coverage of environment-related issues.

Society of Professional Journalists (“SPJ”) is

dedicated to improving and protecting journalism. It

is the nation’s largest and most broad-based

journalism organization, dedicated to encouraging the

free practice of journalism and stimulating high

standards of ethical behavior. Founded in 1909 as

Sigma Delta Chi, SPJ promotes the free flow of

information vital to a well-informed citizenry, works

to inspire and educate the next generation of

journalists and protects First Amendment guarantees

of freedom of speech and press.

The Tully Center for Free Speech began in Fall,

2006, at Syracuse University's S.I. Newhouse School

of Public Communications, one of the nation's premier

schools of mass communications. It is a subsidiary of

Syracuse University.

The California Broadcasters Association

(“CBA”) is an incorporated nonprofit trade association

representing the interests of the over 1000 radio and

television stations in our state. The CBA advocates on

state and federal legislative issues, provides seminars

for member education and offers scholarship

3

opportunities to students in the communication

majors.

National Newspaper Association is a 2,000

member organization of community newspapers

founded in 1885. Its members include weekly and

small daily newspapers across the United States. It is

based in Pensacola, FL.

Gannett is the largest local newspaper

company in the United States. Our more than 200

local daily brands in 43 states — together with the

iconic USA TODAY — reach an estimated digital

audience of 140 million each month.

Dow Jones & Company is the world's leading

provider of news and business information. Through

The Wall Street Journal, Barron's, MarketWatch,

Dow Jones Newswires, and its other publications,

Dow Jones has produced journalism of unrivaled

quality for more than 130 years and today has one of

the world's largest newsgathering operations. Dow

Jones's professional information services, including

the Factiva news database and Dow Jones Risk &

Compliance, ensure that businesses worldwide have

the data and facts they need to make intelligent

decisions. Dow Jones is a News Corp company.

Association for Uncrewed Vehicle Systems

International (“AUVSI”) is the world’s largest

nonprofit organization dedicated to the advancement

of unmanned systems and robotics and represents

corporations and professionals from more than 60

countries involved in industry, government, and

academia. AUVSI members work in the defense, civil,

and commercial markets.

4

Radio Television Digital News Association

(“RTDNA”) defends the First Amendment rights of

citizens, honors outstanding work through the

Edward R. Murrow Awards and provides journalists

with training to encourage ethical standards,

newsroom leadership and industry innovation.

Getty Images (US), Inc. (“Getty Images”) is a

leading source for visual content around the world,

including a comprehensive editorial offering. Through

our brands Getty Images, iStock and Unsplash, we

provide a platform that enables customers to lawfully

license editorial and creative work from content

creators who are able to monetize their work. We

support these endeavors by advocating for the rights

of creative professionals and journalists.

The News/Media Alliance represents over 2,200

diverse publishers in the U.S. and internationally,

ranging from the largest news and magazine

publishers to hyperlocal newspapers, and from

digital-only outlets to papers who have printed news

since before the Constitutional Convention. Its

membership creates quality journalistic content that

accounts for nearly 90 percent of daily newspaper

circulation in the U.S., over 500 individual magazine

brands, and dozens of digital-only properties. The

Alliance diligently advocates for newspapers,

magazine, and digital publishers, on issues that affect

them today.

TEGNA Inc. owns or services (through shared

service agreements or other similar agreements) 64

television stations in 52 markets.

5

American Society of Media Photographers, Inc.

(“ASMP”) is a 501(c)(6) not-for-profit trade

association, established in 1944 to protect and

promote the interests of professional photographers

and all visual creators who earn their living by

making works intended for publication, display, and

every avenue of art and commerce. With thousands of

members across 38 chapters and in 22 countries,

working in every genre of photography, videography,

content creation, and media, ASMP is a leading trade

organization representing professional creators’

interests.

The Student Press Law Center (“SPLC”) is a

national, non-profit, non-partisan organization

established in 1974 that works to promote, support,

and defend the press freedom and freedom of

information rights of high school and college

journalists. As the only national organization in the

country devoted exclusively to defending the legal

rights of the school-sponsored and independent

student press, SPLC collects information on student

press cases nationwide and produces a number of

publications on student press law, including its book,

LAW OF THE STUDENT PRESS (4th ed. 2014).

Amici have a strong interest in preserving the

ability of journalists to gather and distribute lifesaving information and other information of public

importance and concern to their readers and viewers

and to protect journalists from the fear of retaliation

when they do so. Amici submit this brief to highlight

the ways in which Texas Government Code Chapter

423, which prohibits capturing with a drone any

“image of an individual or privately owned real

6

property” with the intent to “conduct surveillance”

and bars publication of such images without defining

“surveillance” and without excepting journalists from

the statute, stifles free speech and prevents

journalists from fulfilling their mission to the public.

Drones are a particularly useful tool because they

allow journalists to capture images that would be

difficult or impossible for a person to obtain otherwise.

Drone images communicate to the public the scope

and danger of these events and can aid in securing

disaster areas by delivering time-sensitive messages

to the public and by showing the public why they must

avoid certain areas. However, journalists are fearful

of using drones to obtain this often life-saving footage

due to the ambiguity of Texas’s drone statute. Amici

respectfully ask the Court to grant the National Press

Photographers Association (“NPPA”) and other

Petitioners’ petition for writ of certiorari and review

the decision of the Fifth Circuit.

I.

SUMMARY OF ARGUMENT

The Texas Association of Broadcasters and 17

media organizations respectfully submit this brief to

describe the impact of the Fifth Circuit’s decision

rejecting Petitioners’ First Amendment challenge to

the Surveillance Provisions in Chapter 423 and

refusing to consider their due process vagueness

challenge for lack of standing.

This brief focuses on the ways in which

journalists use drones to report on important stories

that have significant benefit to the public and to first

responders—and how the specter of criminal

prosecution for drone usage under Texas Government

Code Chapter 423 has caused Texas broadcasters to

7

drastically reduce or halt their drone programs.

Because there is no viable alternative to drone footage

for most broadcast stations and publishers in Texas,

Chapter 423 not only chills journalistic speech but

also prevents journalists from fulfilling their mission

to the public: to distribute lifesaving and timely

information about natural disasters and other major

events to their communities.

The district court’s decision finding Chapter

423 unconstitutional under the First Amendment

granted journalists a brief reprieve, but the Fifth

Circuit’s opinion, which held that Chapter 423’s

Surveillance Provisions survive intermediate scrutiny

without addressing the statue’s vagueness, leaves the

ambiguity of the statute unresolved and thus leaves

TAB’s members and other journalists unsure and

fearful to use drone technology despite its importance

for news gathering and the life-saving potential of

those stories. Leaving the Fifth Circuit’s decision

intact would block many news outlets from acquiring

or airing any aerial footage, making it impossible for

them to adequately convey the gravity and scope of

significant events, like natural disasters.

This amicus brief contains firsthand accounts

from directors at TAB’s member stations and other

journalists about how they have used or would use

drones for reporting and how the threat of criminal

prosecution under Chapter 423 has made collecting

images via drones next to impossible.2

These

2 Except as otherwise noted, all of the accounts presented in

this amicus brief were provided to TAB by the individuals

quoted, who are TAB members. The sworn statement of D.

Victoria Baranetsky, general counsel of CIR, was filed in the

8

individuals note numerous occasions on which drone

footage would have better communicated the scope

and gravity of an emergency situation to viewers,3

helping viewers to understand the urgency of

evacuation and convincing them not to reenter the

area. In particularly tragic circumstances, evacuees

even turn to the news to discover whether their homes

still stand—yet, under Chapter 423, news stations

face criminal prosecution if they try to give viewers

those answers. Although privacy concerns have been

used to justify Chapter 423’s restrictions on speech,

those privacy concerns are undermined by the fact

that the law exempts many other uses—including

commercial uses—that offer less immediate benefit to

the public than broadcast journalism, and a

broadcaster can collect the very same images by

helicopter that he may face jailtime for if collected by

drone. These narratives illustrate the important role

that drones have in modern journalism and the losses

the public will face if news organizations cannot use

them for newsgathering.

district court. See Decl. of D. Victoria Baranetsky, ECF No. 63,

Civil Action No. 1:19-CV-00946-RP (W.D. Tex. Filed July 9,

2021). Counsel has identified individuals by name where

permitted. Some of the individuals have requested that their

names be withheld, and counsel has respected that request

where made.

3 This brief focuses on emergency situations, but the same

principles hold true for myriad other situations where the

public interest and matters of public concern are involved.

9

II.

ARGUMENT

A. The use of image-capturing drones is

essential to fulfilling journalists’ mission

to timely communicate life-saving

information to the public.

As Petitioners described in their Petition for

Writ of Certiorari, “[d]rones are cost-effective

newsgathering tools that have become vital for 21stCentury journalism….” Petition at 1. Drones allow

journalists to show viewers what life is like on the

ground during major events, such as environmental

disasters, without putting humans in harm’s way.

These images not only communicate the gravity or

scale of an event, but they also are an efficient way to

distribute life-saving information to the public

quickly. The experience of TAB and its members

demonstrate the enormous value drones have for

newsrooms and the public. The news directors of

TAB’s member stations provided numerous accounts

of how they have used drones—or situations in which

they would have used drones, but for Chapter 423.

Many of these uses involve gathering images to

communicate

time-sensitive

and

life-saving

information to the public about disaster events in

their communities.

For example, several news

directors of Texas broadcasting stations reported that

they would have liked to have used drones to gather

footage of major floods, tornadoes, or fires so that the

public could be fully aware of the gravity of those

disasters. Blaise Labbe, a Group News Director at

Sinclair Broadcast Group, which, through its

subsidiaries, owns and operates news stations in

Abilene, Amarillo, Austin, Beaumont, El Paso, and

10

San Antonio, described several recent disasters in

which drone footage would have had a significant

public benefit and saved lives:

The Smokehouse Creek Fire[, the largest

wildfire in state history,] burned 1.1 million

acres over the course of three weeks. It also

killed two people, destroyed hundreds of homes

and killed [hundreds] of thousands of cattle.

While most of the fire burned in “open country,”

it was still on land owned by ranchers which

prevented us from shooting it. The law kept

KVII[, the local Amarillo station,] from showing

viewers the sheer magnitude of the fire and the

threat it presented, even amid emergency

evacuations.

An EF 3 tornado hit Perryton[, another city in

the Texas Panhandle near Amarillo,] in June

2023. The twister killed three and injured more

than 100 others. We strongly believe being able

to show damage from an aerial perspective can

help in several ways. Most importantly, it can

save lives by changing the minds of people who

don’t think they need to have a plan, know

where the safe place is in their home and have

multiple ways to get warnings in the event of

severe weather. It can help with the recovery

process by providing a more accurate picture of

the damage. It can also aid researchers with

efforts to design and build homes that are more

storm resistant.

Amarillo had historic flooding in Spring 2023

that forced people to evacuate. People were

constantly asking about the status of their

11

business, homes and neighborhoods. Aerial

video of the flooding would have allowed KVII

to keep viewers better informed with what

parts of town were still under water and what

areas were safe to return to. It could have

helped the city re-evaluate stormwater

draining plans. Like the Perryton tornado, it

would have also helped with recovery efforts.

The Beaumont area had severe weather that

tore through the market, which included an

EF-2 tornado that leveled a church in Port

Arthur on Wednesday[, April 10, 2024]. There

was also severe flooding which impacted a

major highway north of Beaumont. Had KFDM

been able to fly with their drone, they could

have captured images that would illustrated

the severity of the flooding over the highway to

give the viewers a sense of how long it would

take for the waters to recede and for the

trapped residents to expect relief. They would

have also been able to better show viewers the

impact of the devastation caused by the tornado

which would have reinforced the importance of

heeding weather warnings to the public.

Another news director of a Texas broadcast

station, who spoke on the condition of anonymity,

reported that the station used drone footage to report

on instances in which vehicles drove into a body of

water, including one instance when an ambulance

went into a body of water. In both stories, the footage

was essential to communicating “how difficult and

dangerous the scenes were for first responders and

12

those involved,” and to discouraging the public from

entering the area.

Texas is a large state, with many remote and

rural areas that have fewer resources than the major

metropolitan areas. Although law enforcement is

permitted to use drones to capture images under

Chapter 423, they do not always have the resources,

time, or manpower to maintain drones or gather that

footage while at the same time responding to an

emergency. Mr. Labbe described several occasions on

which drone footage would not only have benefited the

public but also would have significantly aided law

enforcement:

On March 22, 2024 – a school bus from Hays

CISD[, a school district near Austin,] was

bringing Pre-K students back to school after a

field trip – when it was hit by a concrete

pumper truck on a rural two-lane highway.

CBS Austin had to wait more than an hour for

the helicopter from their sister station in San

Antonio to arrive on the scene to get video. This

is the same video they could have gotten with a

drone…. [a]t a much faster speed. This could

have also helped first responders – by giving

them a unique look at the crash scene from the

air quicker.

In addition, drones can help cover severe

flooding. For example, when the Llano bridge

collapsed due to unprecedented rain back in

October 2018 – there was concern about safety

around the scene. If the station could fly a

drone[,] they could have helped first

responders/engineers assess the situation

13

without having to get close to the area. Further

downstream[,] water was rushing over dams. If

they could have flown a drone over the area[,]

it could have helped determine whether a

breach was possible – as that was a concern

early on.

Many news stations provide updates about

traffic and alternate routes to the public but cannot

gather this information or fully communicate the

scope to the public without aerial images. For

example, a news director in San Antonio who spoke on

the condition of anonymity, reported several instances

in which drone footage would have more effectively

communicated information about traffic accidents and

construction:

Earlier this month, a woman was killed in an

accident with a tractor-trailer, which

completely shut down I-37. This is one of the

state’s major highways, and people were stuck

in traffic for hours. Utilization of drone images

would have helped contextualize this for

viewers, by showcasing the extent of the

problem for commuters. Instead, we resorted

to using ground video and Transguide cameras,

which had limited ability to illustrate the story.

The continuing construction of Loop 1604 is an

ongoing saga for San Antonians, and there are

numerous stories we’ve done about closures

and construction updates. To date, the best

images we have been able to provide our

viewers is traffic maps or graphics that explain

the issue. Being able to use drone footage

would give us the ability to enhance our

14

coverage by providing aerial perspectives and

visual updates for the public. Currently, we are

unable to look at the project from a before-andafter perspective, and monitor the progress

visually to strengthen our reporting.

As these uses demonstrate, drones allow

journalists to safely gather information about major

events that would be difficult or impossible to cover in

person—information that may even have life-saving

potential.

B. Chapter 423 has chilled the speech of

TAB’s station members and other

journalists because they choose selfcensorship over the risk of prosecution.

Despite the significant public benefit of dronecaptured imagery for journalists, many news

organizations in Texas have drastically reduced or

halted their drone programs due to fear of prosecution

under Chapter 423. Chapter 423 imposes criminal

liability for 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 statute does not define

what constitutes “surveillance,” and there is no

exception for journalism—even for journalism with a

demonstrable and significant public benefit. Id.

§§ 423.002, .003, .004, .006. As Petitioners describe,

Chapter 423 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

15

public property is a crime.” Petition at 4 (citing Tex.

Gov’t Code §§ 423.002(a)(15); 423.003(a)).

Drone usage brings tremendous benefits to

journalists and the public because it allows journalists

to safely collect and communicate information about

large-scale events, natural disasters, and traffic

incidents. But these stories may involve the collection

of images of individuals and privately owned property,

even when that is not the intent or purpose of the

story. Aerial footage showing the scope of a wildfire

or flood or traffic jam necessarily includes images of

the private property and individuals affected, and it is

often not feasible to get the permission of each

individual or landowner before the time-sensitive

information needs to be shared with the public. Thus,

any time a broadcaster seeks to use drone footage to

demonstrate to the public the scope of a public

emergency, he may find himself caught “between the

Scylla of intentionally flouting state law and the

Charybdis of forgoing what he believes to be a

constitutionally protected activity in order to avoid

becoming enmeshed in a criminal proceeding.” Steffel

v. Thompson, 415 U.S. 452, 462 (1974).

Fearful of criminal prosecution under Chapter

423, TAB’s members have tacked toward Charybdis

and engaged in preemptive self-censorship to avoid

liability. As described in greater detail, supra Section

A, TAB’s members reported many specific incidents in

which they had to compromise coverage of a story for

fear of prosecution under Chapter 423. For example,

Mr. Labbe reported that a local Amarillo station was

unable to collect and show footage of the Smokehouse

Creek Fire because much of the fire raged on private

16

land owned by ranchers. Mr. Labbe reported that the

station was also unable to collect drone footage of

homes around the Amarillo area that were impacted

by historic flooding in 2023, even though information

about private property was precisely the type of

information the viewers desperately sought. Mr.

Labbe reported that residents who had fled their

homes “were constantly asking about the status of

their business, homes, and neighborhoods,” and

“[a]erial video of the flooding would have allowed KVII

to keep viewers better informed with what parts of

town were still under water and what areas were safe

to return to.”

Likewise, CIR’s General Counsel D. Victoria

Baranetsky described how CIR’s Reveal scaled back

its coverage of an important story about abuse at a

private children’s shelter housing immigrant

unaccompanied minors due to CIR’s concerns around

potential criminal prosecution under Chapter 423:

In June 2018, Reveal reporters covering the

immigration beat were investigating the

private shelters contracted by the U.S.

Department of Health and Human Services

and the Office of Refugee Resettlement to hold

immigrant unaccompanied minors.

In

particular, one of Reveal’s stories was about the

Shiloh Treatment Center, a residential child

care center in Manvel, Texas that has been

widely cited for various violations, including

abuse and nonconsensual administration of

medications to children occupants. The

reporting revealed that despite a history of

physical and sexual abuse, the Shiloh

17

Treatment Center continued to receive millions

in federal tax dollars to house immigrant

children.4

In connection with its reporting of the Shiloh

Treatment Center, Reveal hired Brandon

Wade, a Texas-based freelance photojournalist,

to capture aerial images showing readers what

the Shiloh Treatment Center looked like, how

remote it was, as well as the layout of its

buildings. Reveal’s editors determined it was

important to include these images in our

reporting for the public to have a holistic

understanding of where the children were, as

the images reveal a large compound, without

many buildings, in a somewhat remote area.

On June 28, once the editors notified me of their

decision to use the drone, I immediately asked

the editors to put a hold on the assignment

until I had time to review the potential risks

under the state law and federal law given the

factual circumstances….

After reviewing the FAA’s federal regulations,

I researched Texas’ law, Chapter 423, which

prohibits various types of drone use. I

determined that federal regulations do not

restrict these actions and other states do not

restrict journalists using drones like Texas

does. But I was concerned about how the Texas’

statute applied to journalists using drones, and

4 The lead article in the series is available at

https://revealnews.org/article/federal-agency-sent-immigrantkids-to-dangerous-youth-facility-despite-serious-warning-signs/.

18

what the possible consequences would be for

Mr. Wade as well as CIR….

To reduce the chance that CIR or Mr. Wade

would face a legal challenge, I asked Mr. Wade

to be careful to only stand on public property

while flying his drone and to ensure the drone

only flew over public property. I also asked that

Mr. Wade ensure he was in the air for the

shortest period of time possible and that he

confirm when the project started and was

complete. I told Mr. Wade that if any

authorities came, he should stop immediately

and contact me directly.

Reveal paid Mr. Wade for his images and video

of the Shiloh Treatment Center. I further

advised Reveal’s editors to publish only still

photos of the Shiloh Treatment Center to

decrease the likelihood of a challenge under

Chapter 423, since the video would have made

it more obvious that the recordings were taken

with a drone.

If Mr. Wade had not been restricted, more

comprehensive images likely could have been

taken. Similarly, if Reveal had published the

video, readers of Reveal would have obtained a

better understanding of where the shelter was

located and how remote it is.

Given the lack of parity with other state laws

as well as the practical prohibitions it creates

on reporting, Chapter 423 seems to me to be a

method of preventing reporting on important

matters of public interest. It is especially

19

troubling that the statute’s criminalization of

drone use opens the door to selective

prosecutions of . . . journalists who produce

stories to benefit the public. In this

way . . . Chapter 423 poses a substantial risk of

criminalizing lawful—and constitutionally

protected—newsgathering activity and chilling

the very type of investigative journalism that

has previously led to positive reforms and

important changes in our society.

In a survey conducted by TAB, several of its

members reported drastically cutting back or

eliminating their drone programs because of Chapter

423. Sinclair Broadcast Group, which, through its

subsidiaries, owns and operates several stations

across Texas, reported that it halted its drone

program after Chapter 423 was enacted, partially

reinstated the program following the District Court’s

decision enjoining Chapter 423’s enforcement,5 and

then again halted its drone program once the Fifth

Circuit reversed.6 Cody Marcom, the Director of

Photography for WFAA in Dallas-Fort Worth,

reported that his station has implemented stringent

guidelines in an effort to comply with Chapter 423

following the Fifth Circuit’s reinstatement of the law,

but the effect is that the station has reduced its drone

usage by 99 percent. Several other stations reported

to TAB that they did not employ drones at all due to

the potential liability concerns. Some stations even

reported that they ceased using past footage collected

5 App.87a.

6 App.1a.

20

when Chapter 423 was not in effect because they

cannot be sure whether it violates the statute.

Petitioners report several other instances in

which Chapter 423—and specifically, the ambiguity

around what precisely constitutes “surveillance”—has

chilled journalists’ speech. Petition at 5-6. As these

accounts demonstrate, broadcasters specifically cite

the specter of criminal prosecution under Chapter

423—and uncertainty of how to avoid criminal

prosecution—as the reason their stations have

reduced or halted their drone programs, to the

detriment of both the journalists themselves and the

public at large. The record demonstrates that these

broadcasters are already engaging in self-censorship

because of Chapter 423, and this harm has already

been “realized even without an actual prosecution.”

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383,

393 (1988); see also NAACP v. Button, 371 U.S.415,

433 (1963).

While journalists operate in fear of criminal

prosecution from using drone footage, speakers in

other industries are exempt from Chapter 423’s

blanket prohibition against drone surveillance. In

addition to academic or military uses, the statute

exempts numerous private, commercial uses with

limited benefit to the public. For example, the statue

exempts real estate brokers, land surveyors,

engineers, oil pipeline operators, and insurance

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

exemptions are so broad, it is difficult to imagine a

principled basis for permitting these commercial uses

while prohibiting journalistic ones, particularly given

both the significant and obvious public benefit from

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broadcasting aerial footage during natural disasters

and other large-scale events and the other Texas laws

that could apply to invasions of privacy.

C. Using helicopters to capture aerial

images is not a viable alternative to

drone use for Texas broadcasters.

One of the ironies of Chapter 423’s ban on drone

footage of individuals and private property is that the

very same images may be captured legally by

helicopter. Although Chapter 423 constrains the

ability of broadcasters to use drones to capture

images, it does not limit helicopters from gathering

the same aerial footage that a drone could. To the

extent Chapter 423’s restrictions on free speech are

justified by a stated government interest in privacy,

App. 37a, the statute does not accomplish that goal

because the same images can be legally obtained in

other ways.

While the fact that helicopters can legally

capture the same images as a drone undermines the

government’s stated privacy justification for Chapter

423’s restrictions on free speech, it does not, however,

make helicopters a viable alternative to drones for

most broadcast stations and publishers in Texas.

Although some (but not all) stations in major

metropolitan areas have access to a helicopter, most

local broadcast stations in smaller cities or rural

areas, such as Austin, Midland-Odessa, McAllen, or

Amarillo, do not and thus have no alternative to drone

footage for gathering images of major disasters and

other large-scale events in their area. Even in major

cities, helicopters are too costly for stations to

maintain. Mr. Labbe reported that only one station in

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San Antonio currently has a helicopter contract, but

the “economics are questionable that they retain it,”

which would leave a major metropolitan area home to

almost 2.7 million people7 without a legally

sanctioned method to gather aerial footage during

large-scale events or major disasters.

Even for stations that do have access to

helicopters, they do not provide a reasonable

alternative to drones. Mr. Marcom reported that

helicopters require significant lead time before they

can fly, making them less able to respond quickly to

an emergency or developing situation. To use a

helicopter at his station, a journalist must request it,

the station must find a pilot and fuel and prepare the

helicopter for take-off, and the helicopter must then

travel to the destination. In comparison, it takes just

a few minutes to request and prepare a drone to fly.

Additionally, news station helicopters generally are

limited to covering a local area. A news director in

Dallas-Fort Worth who spoke on the condition of

anonymity, reported that, when her station has

reported on a disaster in another part of the state,

such as the devastating wildfires in the Panhandle,

flying the helicopter to that distant location was costprohibitive. As described supra Section A, Mr. Labbe

recalled a specific incident—a tragic bus accident

involving Pre-K students—in which journalists trying

to comply with Chapter 423 by using helicopter

footage instead of drone footage had to wait more than

an hour for a helicopter to arrive from San Antonio to

get the video, which meant that first responders,

7 https://www.axios.com/local/san-antonio/2024/03/18/bexar-

county-texas-population-growth-census (last accessed May 6,

2024).

23

parents, and the community also had to wait for that

footage.

Helicopters also present other practical

problems that drones do not.

TAB’s members

reported that they face more flight restrictions with a

helicopter that do not exist for drones. And those TAB

stations with helicopters reported that they receive

many complaints about noise and disturbances from

helicopter use, while they receive almost no

complaints about the use of drones. Mr. Marcom

reported receiving noise complaints when helicopters

hovered over an area for a longer period of time. He

noted that sometimes local police or fire departments

ask helicopters to fly higher to reduce the level of noise

on the ground, which compromises the detail and

quality of the images those helicopters can obtain.

Thus, while journalists can acquire the very

same images via helicopter that are prohibited if

taken by drone, helicopters are not a viable

alternative to drones for most newsrooms in Texas.

III.

CONCLUSION

For the foregoing reasons, TAB and 17 media

organizations respectfully ask the Court to reverse the

decision of the Fifth Circuit.

Dated: May 13, 2024

Respectfully submitted,

Joel Reese

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Counsel of Record

Bret Rosenthal

Margaret Terwey

REESE MARKETOS LLP

750 N. St. Paul Street

Suite 600

Dallas, TX 75201

Tel.: (214) 382-9810

joel.reese@rm-firm.com

Thomas S. Leatherbury

THOMAS S. LEATHERBURY LAW, PLLC

Cumberland Hill School Building

1901 N. Akard St

Dallas, TX 75201

Counsel for Amici Curiae

Texas Association of Broadcasters and 17

Media Organizations

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