Respondents 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,

PETITIONER

v.

KELLY HIGGINS, IN HIS OFFICIAL CAPACITY AS DISTRICT

ATTORNEY OF HAYS COUNTY, TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

AARON L. NIELSON

Solicitor General

BRENT WEBSTER

First Assistant Attorney

General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700

BENJAMIN W. MENDELSON

Assistant Solicitor General

Counsel for Steven McCraw

and Dwight Mathis

Additional Counsel in Signature Block

Q UE ST IONS P RES ENT ED

More than three-quarters of a million drones are registered in the United States. Although no one disputes

that these inexpensive, lightweight aircraft can be a valuable tool to journalists—as well as many other professionals—it is indisputable that their small size and quiet

propulsion systems enable them to operate in a manner

that is virtually undetectable to ordinary citizens.

For nearly a decade, the Texas Privacy Act, which is

currently codified at Chapter 423 of the Texas Government Code (the “Act” or “Chapter 423”) has protected

Texans from abuse of this technology by prohibiting the

use of drones to capture images of private persons or private property without consent or other statutory exception. And Petitioners have offered no evidence that any

of the named Respondents have applied the Act to prevent or impede legitimate journalistic activity at any

point in the last decade. Nevertheless, Petitioners insist

that it is vital to the Republic that this Court uphold a

putative First Amendment Right to snoop, stalk, and invade the privacy of one’s neighbors. The questions presented are:

1. Whether Petitioners, who have never been threatened with enforcement of Chapter 423 for journalistic activity, nonetheless have standing to challenge Chapter

423 as facially vague when applied to journalists.

2. Whether the First Amendment prohibits a State

from regulating where, when, and how a private citizen

can fly a drone just because the drone is capable of taking photographs.

(I)

T ABL E OF C O NT ENT S

Page

Questions Presented ......................................... I

Table of Authorities ...................................... IV

Introduction .................................................... 1

Statement ........................................................ 3

I. The Ability of Drones to Invade

Privacy ................................................... 3

II. The Texas Privacy Act ........................... 3

III. Procedural History ................................ 4

Reasons for Denying the Petition .................... 8

I. This Case Presents a Poor Vehicle

to Review Either Question Presented. .... 8

A. Petitioners have brought a

type of facial challenge that does not

exist. .................................................. 8

B. Respondents are entitled to sovereign

immunity. .......................................... 9

1. Prosecutors are arms of

the State entitled to

immunity. ...................................... 9

2. The Ex parte Young exception to

sovereign immunity does not apply

to Higgins. ................................... 11

II. The First Question Presented Does Not

Warrant Review. ................................... 13

A. The first question presented does not

implicate a circuit split. .................... 14

1. The Fifth Circuit never required an

arrest to establish standing. ......... 14

2. Petitioners’ alleged circuit split is

based on outdated caselaw. .......... 15

(II)

III

B. Resolving Petitioners’ standing

question will not alter the outcome of

the case. ........................................... 18

C. Petitioners lack standing to sue

Higgins. ............................................ 21

III. The Second Question Presented Does Not

Warrant Review. ................................... 23

A. A lack of standing renders this a poor

vehicle to resolve any dispute

regarding Petitioners’ First

Amendment claims. ........................... 24

B. The second question presented does

not implicate a circuit

split. ................................................. 25

C. The Surveillance Provisions are not

subject to strict scrutiny. ................. 29

1. The First Amendment does not

protect the right to fly a

drone. ........................................... 29

2. The Surveillance Provisions are at

most subject to intermediate

scrutiny. ....................................... 30

3. The Fifth Circuit’s application of

intermediate scrutiny does not

merit review. ................................ 33

Conclusion ...................................................... 34

IV

T ABL E OF AU T HORI T IE S

Page(s)

Cases:

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

Dist. of Columbia,

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

Alden v. Maine,

527 U.S. 706 (1999) .......................................................... 9

Animal Legal Defense Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018) ....................................... 26

Babbitt v. United Farm Workers Nat. Union,

442 U.S. 289 (1979) ............................................ 15, 16, 18

Brown v. Kemp,

86 F.4th 745 (7th Cir. 2023) .......................................... 27

Burns v. Reed,

500 U.S. 478 (1991) ........................................................ 11

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

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

California v. Texas,

593 U.S. 659 (2021) ................................ 15, 16, 21, 22, 23

City of Austin v. Paxton,

943 F.3d 993 (5th Cir. 2019) ................................... 14, 17

City of Austin v. Reagan National Advertising of

Austin, LLC,

596 U.S. 61 (2022) .................................................... 31, 32

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .......................................................... 22

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) .................................................. 24, 25

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) ...................................................30-31

V

Cases (ctd.):

Collins v. Yellen,

594 U.S. 220 (2021) .................................................. 16, 23

Cramp v. Bd. of Pub. Instruction of Orange Cnty.,

368 U.S. 278 (1961) ........................................................ 21

Ctr. for Indiv. Freedom v. Madigan,

697 F.3d 464 (7th Cir. 2012) ......................................... 17

Fed. Maritime Comm’n v. S.C. State Ports Auth.,

535 U.S. 743 (2002) ........................................................ 10

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ........................................................ 22

Gonzales v. Carhart,

550 U.S. 124 (2007) ........................................................ 18

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949) ........................................................ 33

Gulf Ins. Co. v. James,

185 S.W.2d 966 (Tex. 1945)........................................... 20

Harrell v. Fla. Bar,

608 F.3d 1241 (11th Cir. 2010) ..................................... 17

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30 (1994) .......................................................... 10

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ............................................................ 16

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ............................................................ 32

International Outdoor, Inc. v. City of Troy,

77 F.4th 432 (6th Cir. 2023) .......................................... 27

Kleinman v. City of San Marcos,

597 F.3d 323 (5th Cir. 2010) ......................................... 30

Laird v. Tatum,

408 U.S. 1 (1972) ............................................................ 21

VI

Cases (ctd.):

Lebo v. State,

90 S.W.3d 324 (Tex. Crim. App. 2002) ........................ 20

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) .................................................. 22, 25

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)......................................... 33

Minn. Voters Alliance v. Mansky,

585 U.S. 1 (2018) ............................................................ 19

Moody v. Netchoice, LLC,

144 S. Ct. 2383 (2024) ...................................................... 8

N. Ins. Co. of N.Y. v. Chatham Cnty.,

547 U.S. 189 (2006) .......................................................... 9

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

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

National Press Photographers Association v. McCraw,

No. 22-50337 (5th Cir.) .................................................... 3

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021) .......................................... 26

New York v. New Jersey,

598 U.S. 218 (2023) ........................................................ 11

Nichols v. United States,

578 U.S. 104 (2016) ........................................................ 19

Oregon v. Ice,

555 U.S. 160 (2009) ........................................................ 11

People for Ethical Treatment of Animals, Inc. v.

North Carolina Farm Bureau Federation,

60 F.4th 815 (4th Cir. 2023) .......................................... 28

Project Veritas v. Schmidt,

95 F.4th 1152 (9th Cir. 2024) ........................................ 26

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................................ 31

VII

Cases (ctd.):

Regents of the Univ. of Ca. v. Doe,

519 U.S. 425 (1997) ........................................................ 10

Rowan v. U.S. Post Off. Dept.,

397 U.S. 728 (1970) ........................................................ 32

Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,

547 U.S. 47 (2006) .................................................... 29, 30

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422 (2007) .......................................................... 9

State v. Stephens,

663 S.W.3d 45 (Tex. Crim. App. 2021) ...................10-11

Steffel v. Thompson,

415 U.S. 452 (1974) .................................................. 12, 21

Surita v. Hyde,

665 F.3d 860 (7th Cir. 2011) ................................... 28, 29

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) .................................................. 16, 24

Tex. Democratic Party v. Abbott,

961 F.3d 389 (5th Cir. 2020) ............................. 12, 14, 18

Turner Broad. Sys., Inc., v. F.C.C.,

512 U.S. 622 (1994) ........................................................ 32

United States v. Davis,

588 U.S. 445 (2019) ........................................................ 20

United States v. O’Brien,

391 U.S. 367 (1968) ............................................ 29, 30, 31

Va. Off. for Prot. & Advoc. v. Stewart,

563 U.S. 247 (2011) ........................................................ 11

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

484 U.S. 383 (1988) ........................................................ 15

Woodhull Freedom Found. v. United States,

948 F.3d 363 (D.C. Cir. 2020) ....................................... 17

VIII

Cases (ctd.):

Ex parte Young,

209 U.S. 123 (1908) .............................................. 6, 11, 12

Zemel v. Rusk,

381 U.S. 1 (1965) ............................................................ 30

Constitutional Provisions and Statutes:

U.S. Const.:

amend. I .......................I, 1-2, 5, 6, 9, 15-16, 23-25, 28-30

amend. XIV .................................................................. 5, 6

Tex. Const.:

art. IV, §§ 1-2.................................................................. 10

art. V, § 21 ................................................................. 10, 11

18 U.S.C. § 2261A ................................................................ 20

50 U.S.C. § 1801(f) ............................................................... 20

Tex. Code Crim. Proc. art. 12.02(a)(1)-(2) ........................ 13

Tex. Gov’t Code:

§ 44.205(b) ................................................................. 10, 11

Ch. 423............................................................. I, 1, 5, 8, 14

§ 423.001 ............................................................................ 8

§ 423.002............................................................................ 4

§ 423.002(a)(1)-(21) .......................................................... 4

§ 423.002(a)(6) ...................................................... 4, 31, 32

§ 423.002(a)(14) .................................................... 4, 31, 32

§ 423.002(a)(15) ................................................................ 4

§ 423.003........................................................................ 1, 4

§ 423.003-.004 ................................................................... 4

§ 423.003(a) ..................................................... 8, 19, 31, 32

§ 423.003(a)-(b) ................................................................. 4

§ 423.003(b) ..................................................................... 13

§ 423.004............................................................................ 4

IX

Constitutional Provisions and Statutes (ctd.):

§ 423.004(a) ................................................................... 1, 4

§ 423.004(b) ..................................................................... 13

§ 423.006............................................................................ 4

Other Authorities:

Act of May 27, 2013, 83d Leg., R.S., ch. 1390,

2013 Tex. Gen. Laws 3691 (H.B. 912) ......................... 18

Brief for Plaintiffs-Appellees/Cross-Appellants,

No. 22-50337 (5th Cir. Nov. 16, 2022) ......................... 13

Departments, City of San Marcos,

https://www.sanmarcostx.gov/35/Departments ........ 12

Gregory F. Zoeller, Duty to Defend and

the Rule of Law, 90 IND. L.J. 513 (2015) .................... 17

Jaroslav Lukiv, Trump Shooter Flew Drone Above

Rally Site Ahead of Time - US Media, BBC

(July 21, 2024), https://www.bbc.com/

news/articles/c0xj5w3nx7yo ........................................... 3

Office of the Chief Counsel, State and Local

Regulation of Unmanned Aircraft

Systems (UAS) Fact Sheet, Fed. Aviation

Admin. (Dec. 17, 2015),

https://www.faa.gov/sites/faa.gov/files/uas/p

ublic_safety_gov/public_safety_toolkit/UAS

_Fact_Sheet_Final.pdf ................................................... 1

STEPHEN M. SHAPIRO, SUPREME COURT

PRACTICE (10th ed. 2013) ................................... 9, 13, 33

American Heritage Dictionary of the English

Language (5th ed. 2016) ......................................... 19, 20

Black’s Law Dictionary (11th ed. 2019) ...................... 19, 20

Webster’s Third New International Dictionary

Unabridged (1961) ....................................................19-20

I NT RO DUC T IO N

In 2013, the Texas Legislature passed Chapter 423 to

address what was then an emerging technology: unmanned aircraft systems—also commonly referred to as

“unmanned aerial vehicles” or “drones.” 1 Because

drones were still largely the domain of law enforcement

or hobbyists, another two years would pass before the

Federal Aviation Administration “proposed a framework

of regulation that would allow routine commercial use of

certain small [drones] in today’s aviation system.” 2 To fill

this gap, the Texas Legislature passed the Act to prohibit the use of drones to surveil private Texans in certain circumstances, Tex. Gov’t Code § 423.003, or to distribute any resulting photographs without their consent,

id. § 423.004(a).

In 2019, a freelance photographer and two trade

groups asserted that Chapter 423 was facially unconstitutional as applied to journalists based on a putatively

“unqualified First Amendment right to conduct aerial

surveillance on non-consenting private individuals on

private property.” Pet.App.44a. Given the facial paradox

of a facial-as-applied challenge, this case should have

been dismissed at the outset. Instead, Petitioners proceeded to summary judgment where they offered no evidence of any instance where Respondents had enforced

Chapter 423 against a journalist in the intervening decade.

To avoid confusion, Respondents refer to these aircraft as

“drones” except when quoting statutory language.

1

Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet at 2, Fed. Aviation Admin. (Dec. 17, 2015), https://www.faa.gov/sites/faa.gov/files/uas/public_safety_gov/public_safety_toolkit/UAS_Fact_Sheet_Final.pdf.

2

(1)

2

Although its reasoning is imperfect, the Fifth Circuit

judgment in favor of Respondents does not merit this

Court’s attention. To start, the petition does not challenge the Fifth Circuit’s conclusion that two of the three

defendants were entitled to judgment because sovereign

immunity does not permit a pre-enforcement facial challenge to a statute that a state defendant has never

threatened to enforce against the plaintiff. Thus, this

Court can only issue relief against District Attorney

Higgins. But even if the Court granted review, the appropriate remedy would merely be to change the judgment from dismissal with prejudice to dismissal without

prejudice because as a state official, Higgins is entitled

to immunity for the same reasons. Such tinkering with

the lower court’s judgment is hardly worth this Court’s

time.

Even if the Court overlooked this glaring vehicle

problem, neither question presented is cert-worthy. The

circuit splits to which Petitioners point are illusory because they rely on a mischaracterization of the Fifth Circuit’s holding, superseded case law, or cases applying the

same law to different facts. Petitioners also lack standing

to sue the District Attorney for much the same reason he

should have been found to have sovereign immunity:

They have not shown a substantial likelihood that he will

enforce the Act against them. Moreover, Petitioners’

claims fail on the merits because the word “surveillance”

is not unconstitutionally vague, and the First Amendment does not protect the alleged right to fly a drone

with a camera to surreptitiously surveil private property.

3

S TA TEM ENT

I. The Ability of Drones to Invade Privacy

Drones are a relatively new, versatile, and increasingly popular technology. For “the price of a flat-screen

TV,” anyone “can go online and purchase a commercial

model heavy enough to deliver a small package”—or

carry a sophisticated camera. ROA.750. 3 This presents

both unique opportunities as compared to conventional

aircraft but also unique regulatory challenges—particularly as they apply to privacy: Put simply, “[h]elicopters

and airplanes are noisy and difficult to miss,” ROA.813,

but “[d]ue to the relatively small size of the average

drone and the very large search area in which it can operate, drones are difficult to detect” by the average person, ROA.755.

Drone technology is also subject to abuse. As FBI Director Christopher Wray warned a Senate committee:

“[G]iven their retail availability, lack of verified identification requirement to procure, general ease of use, and

prior use overseas,” drones can and likely “will be used

to facilitate an attack in the United States against a vulnerable target, such as a mass gathering.” ROA.749. Director Wray proved prescient. E.g., Jaroslav Lukiv,

Trump Shooter Flew Drone Above Rally Site Ahead of

Time - US Media, BBC (July 21, 2024), https://www.

bbc.com/news/articles/c0xj5w3nx7yo.

II. The Texas Privacy Act

Passed in 2013, the Texas Privacy Act, Tex. Gov’t

Code §§ 423.001-.009, aims to prevent such abuse. It provides that it is “lawful to capture an image” using a drone

“ROA.” refers to the record on appeal in National Press Photographers Association v. McCraw, No. 22-50337 (5th Cir.).

3

4

in any of 21 statutory circumstances. Tex. Gov’t Code

§ 423.002(a)(1)-(21). Relevant here, it permits images to

be captured “with the consent of the individual who owns

or lawfully occupies the real property captured in the image.” Id. § 423.002(a)(6). It is also lawful to capture an

image with a drone “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.” Id. § 423.002(a)(14). Similarly, one may capture an image with a drone “of public real property or a

person on that property.” Id. § 423.002(a)(15). 4

Where the Act does apply, section 423.003 makes it a

Class C misdemeanor to “use[] 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.” Id. § 423.003(a)-(b). Section 423.004 makes it a separate offense to capture such an image and possess, disclose, display, distribute, or otherwise use it. Id.

§ 423.004(a). Finally, section 423.006 provides a private

cause of action against those who violate the Privacy Act.

III. Procedural History

A. Petitioners are two trade associations, namely,

the National Press Photographers Association and the

Texas Press Association, and Joseph Pappalardo, a

Texas journalist and drone pilot. Pet.ii. Relevant here,

the NPPA alleged that in 2018, a federal agent stopped

one of its members, Guillermo Calzada, from taking

Together with section 423.002, Petitioners denominate sections 423.003-.004 and .006 the “Surveillance Provisions.” Respondents do not necessarily agree with this characterization but will use

this terminology to avoid confusion.

4

5

further photographs of the scene of a “deadly arson fire”

that ATF was investigating in San Marcos, Texas.

ROA.31; see also ROA.650-53. At ATF’s request, two San

Marcos police officers “approached Mr. Calzada[,] and

one of the officers informed him of the criminal penalties

under Chapter 423” if he were to continue using a drone

to take pictures. ROA.31; see also ROA.651. Notwithstanding this warning, Calzada was not prosecuted even

after the San Antonio Express-News published one of

the photographs. ROA.651-53, 1007, 1026.

In their operative complaint, Petitioners alleged several claims. Relevant here, they alleged that the Surveillance Provisions violate the First Amendment rights to

free speech and freedom of the press by restricting the

ability of the press to photograph events that they deem

newsworthy. ROA.38-40. They also asserted that the

term “surveillance” is impermissibly vague under the

Due Process Clause of the Fourteenth Amendment.

ROA.40-41, 44-45.

Instead of suing the San Marcos police or ATF, Petitioners sued the director of the Texas Department of

Public Safety, the Chief of the Texas Highway Patrol,

and the District Attorney of Hays County, all in their official capacities. ROA.21. 5 None of those officials is alleged to have sought to arrest or prosecute—or even to

have interacted with—either Petitioners or their members. Relevant here, the District Attorney was sued expressly because of the “past threat of San Marcos police

officers” to bring a prosecution in Hays County for violation of the Surveillance Provisions. ROA.21.

Ron Joy was Chief of the Texas Highway Patrol, and Wes Mau

was District Attorney of Hays County at the time of the complaint.

ROA.17. Their successors were subsequently substituted as defendants. Pet.App.8a (at nn.17-18).

5

6

B. After dismissing a claim no longer at issue on the

pleadings, ROA.424, the district court granted summary

judgment to Petitioners, ROA.1250. It held the Surveillance Provisions violated the First and Fourteenth

Amendments and enjoined Respondents from enforcing

them. ROA.1250. The parties cross-appealed. ROA.1388,

1397, 1400.

C. A Fifth Circuit panel reversed in relevant part. See

Pet.App.1a. It held that Petitioners lacked standing to

bring their vagueness claims because there was no imminent or credible threat that Respondents would enforce

the Privacy Act against them. Pet.App.12a. But it determined that Petitioners had standing to bring their First

Amendment claims because “[u]nlike in other constitutional contexts, in the speech context,” binding Fifth Circuit precedent required the court to “assume a substantial threat of future enforcement absent compelling contrary evidence.” Pet.App.13a.

Having found standing for a subset of claims, the

court held that sovereign immunity barred Petitioners’

suit against Director McCraw and Chief Mathis who had

never demonstrated a willingness to enforce the Privacy

Act against Petitioners, and thus the claim did not fall

within the Ex parte Young exception to sovereign immunity. Pet.App.20a-21a. But it held that DA Higgins

never had immunity because as a District Attorney, he is

a county rather than a state official. Pet.App.22a.

The court ultimately held for DA Higgins on the merits because the Surveillance Provisions may implicate

but do not violate the First Amendment. Pet.App.28a. It

concluded that intermediate scrutiny applied because

“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

7

permission, and with the intent to conduct surveillance).”

Pet.App.35a. The Fifth Circuit also rejected Petitioners’

argument that strict scrutiny should apply because the

surveillance

provisions

are

“speaker-based.”

Pet.App.31a. “While the law certainly favors some drone

operators over others,” the court noted, “the Surveillance provisions are not for that reason automatically

subject to strict scrutiny” because “[w]hile the law distinguishes among photographers, it does not distinguish

among photographs.” Pet.App.32a. As the Fifth Circuit

explained, “[t]he 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.” Pet.App.30a. “Indeed, the same image

could be captured using a drone, so long as the drone is

flown at a height below eight feet.” Pet.App.30a.

The court further concluded that the Surveillance

Provisions passed intermediate scrutiny based on the

State’s “substantial interest in protecting the privacy

rights of its citizens,” which drones “have singular potential” to harm because “they are small, silent, and able to

capture images from angles and altitudes no ordinary

photographer, snoop, or voyeur would be able to reach.”

Pet.App.36a-37a. The Court concluded the law was adequately tailored to meet that interest because it “bar[s]

only surveillance that could not be achieved through ordinary means.” Pet.App.37a.

The Fifth Circuit denied Petitioners’ request for rehearing en banc. See Pet.App.48a. This petition followed.

8

REA SO NS F OR DE NY I NG TH E P ET I TI ON

I. This Case Presents a Poor Vehicle to Review

Either Question Presented.

A. Petitioners have brought a type of facial

challenge that does not exist.

To start, the petition should be denied because Petitioners pursue a claim that does not exist: They challenge Chapter 423 facially but only as applied to journalists. See ROA.529, 542, 547; Pet.7. As the Fifth Circuit noted, Petitioners “picked an uphill battle by styling

this litigation as a facial, pre-enforcement challenge.”

Pet.App.44a. But this Court’s recent decision in Moody

v. Netchoice, LLC, 144 S. Ct. 2383 (2024), demonstrates

why it isn’t a facial challenge at all—and if it were, it

would fail. That case emphasized that Petitioners must

show that the Privacy Act’s alleged “unconstitutional applications substantially outweigh its constitutional ones.”

Id. at 2397.

By framing their entire case about how Chapter 423

applies to photos taken by journalists, Petitioners have

entirely failed to “address the full range of activities the

law[] covers[], and measure[d] the constitutional against

the unconstitutional applications.” Id. at 2397-98. For example, where the Act applies, it prohibits using a drone

to “capture an image,” Tex. Gov’t Code § 423.003(a),

which includes “any capturing of sound waves, thermal,

infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions,” id. § 423.001 (emphasis added). That covers far more than photographs,

let alone photographs taken for journalistic purposes.

Because Petitioners have not tried to meet the required

burden of proof, this is a poor vehicle to resolve their

questions.

9

B. Respondents

immunity.

are

entitled

to

sovereign

Nor would this be an appropriate vehicle to resolve

the questions presented even if the Court were to construe Petitioners’ claims to be as-applied challenges because all three Respondents enjoy sovereign immunity.

Petitioners have not challenged the Fifth Circuit’s sovereign immunity holding for Director McCraw or Chief

Mathis, rendering them improper Respondents. Pet.i. If

the Court were to grant review, DA Higgins would be

entitled to argue that the claims against him should have

been dismissed for the same reason rather than on the

merits. Cf. STEPHEN M. SHAPIRO, SUPREME COURT

PRACTICE 492 (10th ed. 2013) (“Merely attacking the

reasoning of the lower court requires no cross-appeal.”).

Because sovereign immunity is a jurisdictional question,

it renders any answer to even Petitioners’ standing question superfluous: Petitioners’ claims will be dismissed before the Court ever reaches their First Amendment merits question. See Sinochem Int’l Co. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 431 (2007).

1. Prosecutors are arms of the State entitled

to immunity.

The Fifth Circuit erred in concluding that DA Higgins, Hays County’s elected district attorney, did not

share in the State’s sovereign immunity. “[T]he States’

immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of

the Constitution, and which they retain today.” Alden v.

Maine, 527 U.S. 706, 713 (1999). A “consequence of this

Court’s recognition of preratification sovereignty as the

source of immunity from suit is that . . . arms of the State

possess immunity from suits authorized by federal law.”

N. Ins. Co. of N.Y. v. Chatham Cnty., 547 U.S. 189, 193

10

(2006). As a district attorney, DA Higgins is an arm of

the State when serving in his prosecutorial capacity.

When determining “whether a state instrumentality

may invoke the State’s immunity” the Court has “inquired into the relationship between the State and the

entity in question” by examining “the essential nature

and effect of the proceeding” as well as the “nature of the

entity” and whether a monetary judgment would run

against the State. Regents of the Univ. of Ca. v. Doe, 519

U.S. 425, 429-30 (1997). “When indicators of immunity

point in different directions,” sovereign immunity’s “reasons for being remain [the] prime guide”: protection of

the State’s fisc and “the integrity retained by each State

in our federal system.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 39, 47 (1994). In recent years, the

second purpose—“accord[ing] States the dignity that is

consistent with their status as sovereign entities”—has

come to be seen as “preeminent” in that calculus. Fed.

Maritime Comm’n v. S.C. State Ports Auth., 535 U.S.

743, 760 (2002).

Although Higgins is locally elected, he nonetheless

exercises the core police power of the State. The State of

Texas has no unitary executive or statewide official who

controls prosecutorial power. Instead, to prevent the

abuse of executive power, it is divided among separately

elected officials, Tex. Const. art. IV, §§ 1-2, including district attorneys who are actually deemed part of the

statewide judicial branch and subject to the Texas Legislature’s direct regulation, id. art. V, § 21. In Hays

County, the district attorney “shall exclusively represent

the state in all criminal matters pending before” the

courts of that county, Tex. Gov’t Code § 44.205(b)—an

authority that cannot be exercised by any statewide official absent the DA’s request, see State v. Stephens,

11

663 S.W.3d 45, 55 (Tex. Crim. App. 2021). Accordingly,

when exercising their exclusive power to bring criminal

prosecutions, district attorneys represent the “state,”

not any locality, in doing so. Tex. Const. art. V, § 21; Tex.

Gov’t Code § 44.205(b).

Excluding such officials from the scope of state sovereign immunity is a direct affront to the State’s dignity

as a sovereign. It is “[b]eyond question” that “the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status.”

Oregon v. Ice, 555 U.S. 160, 170 (2009). And its ability to

protect people and property is “a fundamental aspect of

a State’s sovereign power.” New York v. New Jersey, 598

U.S. 218, 225 (2023). It would most certainly offend the

dignity of the State if the only officials in Texas capable

of exercising the prosecutorial power of the State were

not considered an arm of the State when exercising that

function. That analysis is dispositive here. Because of the

importance of prosecutors in enforcing criminal law, DA

Higgins is absolutely immune from monetary damages,

Burns v. Reed, 500 U.S. 478, 486 (1991)—as Petitioners

seem to recognize, see ROA.46. Accordingly, the State’s

fisc is not a relevant factor.

2. The Ex parte Young exception to sovereign

immunity does not apply to Higgins.

For the same reasoning the Fifth Circuit applied to

Director McCraw and Chief Mathis, Ex parte Young

does not provide a route around immunity for Petitioners’ claims against DA Higgins. That doctrine rests on

the fiction “that when a federal court commands a state

official to do nothing more than refrain from violating

federal law, he is not the State for sovereign-immunity

purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563

U.S. 247, 255 (2011). But if the state officer has no

12

“connection with the enforcement of the act,” there is

nothing to enjoin, and “making him a party as representative of the state” is no different than “attempting to

make the state a party.” Ex parte Young, 209 U.S. 123,

157 (1908). After all, a federal court cannot enjoin a defendant from enforcing a law he is already not enforcing—for multiple reasons. Tex. Democratic Party v. Abbott, 961 F.3d 389, 401 (5th Cir. 2020) (“the state officials

must have taken some step to enforce” the challenged

law for Ex parte Young to apply); cf. Steffel v. Thompson,

415 U.S. 452, 458 (1974) (applying the same rule under

the rubric of standing).

Here, Petitioners admit they have never interacted

with anyone in the Hays County DA’s office regarding

the Privacy Act. See ROA.1009, 1016, 1026-27, 1031, 1048,

1065. Thus, the complaint has precisely one connection

to Hays County: the 2018 incident in which Calzada, a

NPPA member, used his drone to photograph an apartment fire in San Marcos, Texas, which is located in Hays

County. ROA.649-51. As he was finishing, he was approached first by a federal agent, ROA.651, and then by

two San Marcos police officers at the request of that

agent, ROA.651. True, one of those officers told Calzada

that he had violated state law by taking pictures and

would do so again if he published the photos. ROA.651.

But the San Marcos Police Department is a department

of the City of San Marcos, not Hays County, and thus not

under the control of DA Higgins. See Departments, City

of San Marcos, https://www.sanmarcostx.gov/35/Departments. Moreover, Calzada was neither cited at the time

or prosecuted even after the photograph was published

and “republished many times.” ROA.651-52. And the

statute of limitations for misdemeanors, such as violations of the Privacy Act, has long since expired. See Tex.

13

Code Crim. Proc. art. 12.02(a)(1)-(2); Tex. Gov’t Code

§§ 423.003(b), 423.004(b).

Even beyond the complaint, the record reflects that

“there has only been one arrest and prosecution for

drone-related activities in Hays County” since the Privacy Act was passed in 2013, ROA.606, which Petitioners

admit did not involve a journalist, see Pet.8. And even

that prosecution occurred seven years ago, see Brief for

Plaintiffs-Appellees/Cross-Appellants at 28 n.15, No. 2250337 (5th Cir. Nov. 16, 2022), before DA Higgins took

office in 2023, see ROA.606; Pet.ii n.1. Because Petitioners have never shown that Higgins has any intention to

enforce the statute against journalists, granting review

would afford Petitioners no help: the Court would simply

need to dismiss based on sovereign immunity rather than

on standing or the merits.

II. The First Question Presented Does Not Warrant

Review.

Apart from these vehicle problems, there is no need

for this Court to review Petitioners’ contention that the

Fifth Circuit “fundamentally misapplie[d] Article III’s

injury requirement” regarding their vagueness claim.

Pet.15. Leaving aside that this Court does not typically

grant review to correct misapplications of existing law,

SHAPIRO, supra at 508-09, their assertions that the Fifth

Circuit took the wrong side of a circuit split are based on

outdated caselaw. This case is also a poor vehicle to review whether Petitioners have standing because they

will only lose on the merits as the term “surveillance” is

not unconstitutionally vague.

14

A. The first question presented

implicate a circuit split.

does

not

Petitioners contend that the Fifth Circuit’s standing

holding contradicts the decisions of five other circuits.

Pet.18. But that argument is based on both a misreading

of the Fifth Circuit’s holding and outdated cases from

other circuits.

1. The Fifth Circuit never required an arrest

to establish standing.

To start, Petitioners’ alleged circuit split is based on

mischaracterizing the decision below. The Fifth Circuit

did not require a plaintiff to be arrested or prosecuted to

show standing for a vagueness claim. Contra Pet.16-18.

Rather, it considered the fact that Petitioners “have

never been arrested or prosecuted for violating Chapter

423” as part of “the available evidence suggest[ing] that

Defendants have never enforced Chapter 423 against

Plaintiffs.” Pet.App.12a. The Fifth Circuit defines enforcement as exercising “compulsion or constraint.”

Pet.App.20a. It is blackletter law in the Fifth Circuit that

“enforcement” includes acts far less than an actual arrest, such as sending a letter threatening enforcement,

City of Austin v. Paxton, 943 F.3d 993, 1001 (5th Cir.

2019), or any other “‘scintilla’ of affirmative action by the

state official” that can be considered a “step” toward enforcement, Tex. Democratic Party, 961 F.3d at 401. Because Petitioners offered no evidence of such a “step” toward enforcement, compare id., with Pet.App.12a, the

Fifth Circuit found no “imminent or even credible threat

of prosecution under Chapter 423” against Petitioners,

and thus no justiciable case or controversy, Pet.App.12a.

15

2. Petitioners’ alleged circuit split is based on

outdated caselaw.

Petitioners’ alleged circuit split is also based on outdated cases holding that the existence of a statute itself

creates a credible fear of future enforcement or that selfcensorship is an injury fairly traceable to a statute itself.

The Court has since clarified that the existence of a statute is not itself an Article III injury.

a. Decades ago, the Court stated that a plaintiff

could demonstrate standing to bring a pre-enforcement

challenge to a statute when “the plaintiff has alleged an

intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution

thereunder.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). And it suggested such a

threat exists any time “[t]he State has not suggested

that the newly enacted law will not be enforced.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393

(1988). Petitioners suggest that Babbitt and American

Booksellers combine to announce a “failure-to-disavow”

standard in First Amendment cases. Pet.13.

Even if that were the law decades ago, it is decades

outdated.

More recently, this Court has clarified that because a

plaintiff must sue a person, not a statute, he “need[s] to

assert an injury that is the result of a statute’s actual or

threatened enforcement, whether today or in the future.”

California v. Texas, 593 U.S. 659, 670 (2021) (emphasis

added) (citing Babbitt, 442 U.S. at 298). “In the absence

of contemporary enforcement, [the Court has] said that

a plaintiff claiming standing must show that the likelihood of future enforcement is substantial.” Id. (quotation

marks omitted). Similarly, the Court has clarified that

16

the “relevant inquiry” regarding traceability—which

overlaps to a certain extent with injury in the pre-enforcement context—“is whether the plaintiffs’ injury can

be traced to allegedly unlawful conduct of the defendant,

not to the provision of law that is challenged.” Collins v.

Yellen, 594 U.S. 220, 243 (2021). So too with redressability. California, 593 U.S. at 671 (“[T]he statutory language is not sufficient.”).

The rule is no different when the First Amendment

is involved. To the contrary, it was in a First Amendment

case that the Court first started to clarify that the third

element of the Babbitt test requires a “threat of future

enforcement of the . . . statute” that “is substantial.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164

(2014) (leaving the first two elements effectively unchanged). Far from resting on the existence of a statute,

the Court did not find “past enforcement against the

same conduct” dispositive but only “good evidence that

the threat of enforcement is not chimerical.” Id. As authority, it pointed, id. at 160, to Holder v. Humanitarian

Law Project, 561 U.S. 1 (2010). In Holder, the Court

noted that the federal government had not disclaimed

prosecuting the plaintiffs for their planned action, but it

found a “credible threat of prosecution” only when that

fact was combined with the federal government’s past

prosecution of 150 defendants, “several” of whom had violated the “statutory terms at issue.” Id. at 16.

b. In asserting a circuit split (at 17-18), Petitioners

entirely ignore this evolution in the Court’s caselaw, relying largely on cases that are many years old, based on

the faulty premise that the existence of a statute establishes standing, or both. Two expressly held that a “nonmoribund statute that facially restrict[s] expressive activity by the class to which the plaintiff belongs” presents

17

a “credible threat” of prosecution. N.C. Right to Life,

Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999); Cal.

Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095

(9th Cir. 2003) (“[T]he threat is latent in the existence of

the statute.”). Two more relied entirely on the fact that

state officials had “not denied” that the plaintiff’s past

actions could fall within the scope of the challenged statute—even if they had not sought to enforce it against the

plaintiffs. Ctr. for Indiv. Freedom v. Madigan, 697 F.3d

464, 475 (7th Cir. 2012); see Woodhull Freedom Found.

v. United States, 948 F.3d 363, 373-74 (D.C. Cir. 2020).

c. Petitioners misread the last two cases on which

they rely to allege a circuit split. Contrary to Petitioners’

contention (at 18), Harrell v. Fla. Bar, 608 F.3d 1241

(11th Cir. 2010), does not stand for the proposition that a

state actor demonstrates an intent to enforce the rule at

issue “merely” by defending the rule in court—a deeply

troubling proposition given that government officials are

generally expected to “defend state statutes against constitutional challenges.” Gregory F. Zoeller, Duty to Defend and the Rule of Law, 90 IND. L.J. 513, 524 (2015).

Rather, like the cases discussed above, it relied in part

on the fact that the law “was recently enacted.” Harrell,

608 F.3d at 1257. Critically, it also explained that the

state defendant “explicitly warned” the plaintiff that engaging in certain conduct “may subject him to discipline.” Id. Finding “sufficient evidence of an intent to enforce the rules” where such a warning was made, id., is

entirely consistent with the law of the Fifth Circuit. City

of Austin, 943 F.3d at 1001. 6 There simply was no such

warning here.

If the age of a statute could offer evidence that the State would

enforce it (and it cannot), that would not help Petitioners because

the Privacy Act has been the law in Texas for over a decade, and

6

18

Nor was standing in Act Now to Stop War & End

Racism Coal. v. Dist. of Columbia, 589 F.3d 433 (D.C.

Cir. 2009), based on a “conventional background expectation that the government will enforce” a given law.

Contra Pet.18. Rather, the D.C. Circuit, in reconciling its

own cases with Babbitt, explained that it had “implied”

that standing required “only a credible statement by the

plaintiff of intent to commit violative acts and a conventional background expectation that the government will

enforce the law.” Id. at 435. But it found standing in that

case because the District of Columbia had “in fact

brought an enforcement action against” one of the plaintiffs. Id. at 435-36. As the Fifth Circuit would have found

standing based on less than that, e.g., Tex. Democratic

Party, 961 F.3d at 401, there is no circuit split.

B. Resolving Petitioners’ standing question will

not alter the outcome of the case.

Even if there were a circuit split, this would be a poor

vehicle to resolve it because finding that Petitioners had

standing would not alter the outcome of the case: Petitioners cannot show that the Privacy Act’s use of the

term “surveillance” is unconstitutionally vague under

the prevailing standard, ROA.40-41, which only “requires that a penal statute define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement,” Gonzales v. Carhart, 550 U.S. 124, 148-49

(2007). “[P]erfect clarity and precise guidance have

never been required even of regulations that restrict

Petitioners still found no evidence that Respondents have enforced

it against a journalist. Act of May 27, 2013, 83d Leg., R.S., ch. 1390,

2013 Tex. Gen. Laws 3691 (H.B. 912).

19

expressive activity.” Minn. Voters Alliance v. Mansky,

585 U.S. 1, 21 (2018).

The so-called Surveillance Provisions are not vague

under this standard. Once again, the Privacy Act prohibits the use of an “unmanned aircraft to capture an image

of an individual or privately owned real property . . . with

the intent to conduct surveillance.” Tex. Gov’t Code

§ 423.003(a). Petitioners have argued that “surveillance”

is vague because it can mean both “close observation or

listening of a person or place in the hope of gathering evidence” or simply the “act of observing or the condition

of being observed”—either of which might include journalism. Brief for Plaintiffs-Appellees/Cross-Appellants

at 59 (quoting dictionaries).

It is true that the term “surveillance” can have more

than one meaning. Surveillance can mean “close observation of a person or group, especially one under suspicion” or “the act of observing or the condition of being

observed.” Surveillance, American Heritage Dictionary

of the English Language 1755 (5th ed. 2016); see Surveillance, Black’s Law Dictionary 1746 (11th ed. 2019) (defining the term as “close observation or listening of a person or place in the hope of gathering evidence.”).

But courts “interpret criminal statutes, like other

statutes, in a manner consistent with ordinary English

usage.” Nichols v. United States, 578 U.S. 104, 111

(2016). And ordinary speakers of the English language

do not use the word “surveillance” to mean simply observation. Rather, the word is ordinarily used to mean

“close watch kept over one or more persons: continuous

observation of a person or area (as to detect developments, movements, or activities)” or “close and continuous observation for the purpose of direction, supervision,

or control.” Surveillance, Webster’s Third New

20

International Dictionary Unabridged 2302 (1961). For

example, ordinary speakers do not say “I am surveilling

the park,” when they walk their dog through Central

Park and use a smartphone camera to take a picture of

one of its many statues. Rather, ordinary speakers use

the term surveillance, for example, when a police officer

conceals himself across the street from a building to determine whether a suspected criminal will arrive.

And if there were any doubt, the canon of constitutional avoidance could narrow the scope of the term. See

United States v. Davis, 588 U.S. 445, 463-65 (2019); Lebo

v. State, 90 S.W.3d 324, 326 (Tex. Crim. App. 2002). Such

a limiting construction is easy to find because “surveillance” as used in the Privacy Act also suggests a clandestine element. The Texas Legislature named the statute

the Texas Privacy Act, see supra n.6, suggesting that it

wanted to prevent drones from being used to spy where

the Act applies. See Gulf Ins. Co. v. James, 185 S.W.2d

966, 970 (Tex. 1945) (explaining that Texas allows a court

to draw some meaning from an act’s title). Indeed, “close

observation of a person or group, especially one under

suspicion,” Surveillance, American Heritage Dictionary

of the English Language 1755 (5th ed. 2016), or “close

observation or listening of a person or place in the hope

of gathering evidence,” Surveillance, Black’s Law Dictionary 1746 (11th ed. 2019), are activities commonly

done secretly—as amply demonstrated by the use of the

term in the Foreign Intelligence Surveillance Act, 50

U.S.C. § 1801(f), and the federal statute criminalizing

stalking, 18 U.S.C. § 2261A.

Accordingly, as used in the Privacy Act, the most ordinary meaning of surveillance—or at least an imminently reasonable reading—is close and continuous observation, typically clandestinely, but not simply the act

21

of observing. That hardly “forbids . . . the doing of an act

in terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application.” Cramp v. Bd. of Pub. Instruction of Orange

Cnty., 368 U.S. 278, 287 (1961).

C. Petitioners lack standing to sue Higgins.

Even if there were a circuit split and this were an appropriate vehicle to resolve it, there is no need to do so

because Petitioners demonstrably have not alleged—let

alone offered adequate evidence to survive summary

judgment—that they have received “threats of prosecution,” sufficient to demonstrate that their “concern with

arrest has not been ‘chimerical.’” Steffel, 415 U.S. at 459.

At most they have made “[a]llegations of a subjective

‘chill,’” which this Court has held for half a century “are

not an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm.”

Laird v. Tatum, 408 U.S. 1, 13-14 (1972). This is true for

three reasons.

First, the facts as demonstrated at summary judgment do not show “that the likelihood of future enforcement is ‘substantial.’” California, 593 U.S. at 670. Petitioners admit they have never interacted with anyone in

the Hays County DA’s office regarding the Privacy Act.

See ROA.1009, 1016, 1026-27, 1031, 1048, 1065. To the

contrary, though this case proceeded to summary judgment, the only interaction between a journalist and law

enforcement in Hays County reflected in the record is

the incident recited in the complaint between Calzada

and the San Marcos police, which did not result in a citation or an arrest. See supra 12-13. If anything, that Calzada was not arrested even though law enforcement

knew that his photograph that had been published several times—once on the front page of a local

22

newspaper—was taken using a drone, ROA.651-52, indicates that “the likelihood of future enforcement” in Hays

County is not “substantial,” California, 593 U.S. at 670.

True, the record does reflect that “there has . . . been

one arrest and prosecution for drone-related activities in

Hays County” since the Privacy Act was passed in 2013.

ROA.606. But that prosecution occurred seven years

ago, before Higgins took office, and Petitioners admit it

had nothing to do with journalists. Pet.8. Moreover, because Petitioners only learned of that prosecution in discovery, ROA.605-06, 993, it can hardly be deemed sufficient evidence of credible fear to establish standing,

which is assessed at the time the action commences, see

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 191 (2000).

Second, even if the past actions of the San Marcos Police Department or a past District Attorney could be attributable to DA Higgins, that is insufficient because Petitioners seek prospective relief. ROA.46. This Court

held more than four decades ago that standing for prospective relief cannot rest entirely on a defendant’s allegedly unconstitutional acts in the past because they

“do[] nothing to establish a real and immediate threat”

of future injury remediable by an injunction. City of Los

Angeles v. Lyons, 461 U.S. 95, 105 (1983). Here, it is not

even clear that Petitioners have shown “[p]ast exposure

to illegal conduct,” id., since the one prosecution to which

they point did not involve a journalist and thus falls outside the scope of their legal theory, supra Part I.A. But

even if it did, that past prosecution would not “show a

present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse

effects.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564

(1992). Since Petitioners can point to no such ongoing

23

effects, the Fifth Circuit was entirely correct to hold that

they lack standing to seek prospective relief.

Third, Petitioners cannot trace any prospective injury to DA Higgins. As noted above, under current

caselaw, “for purposes of traceability, the relevant inquiry is whether the plaintiffs’ injury can be traced to allegedly unlawful conduct of the defendant, not to the provision of law that is challenged.” Collins, 594 U.S. at 243.

“In the absence of contemporary enforcement, [this

Court has] said that a plaintiff claiming standing must

show that the likelihood of future enforcement is ‘substantial.’” California, 593 U.S. at 670. Because Petitioners have not shown that DA Higgins is substantially

likely to enforce the Privacy Act against them for the

reasons discussed above, see supra 12-13, there is no

need to grant this case merely to hold that the Fifth Circuit correctly applied current precedent on the first

question presented.

III. The Second Question Presented Does Not

Warrant Review.

For many of the same reasons, there is also no need

to review the Fifth Circuit’s conclusion that the Surveillance Provisions are subject to—and survive—intermediate scrutiny. This case is a poor vehicle to resolve any

dispute regarding the standard of scrutiny that should

be applied to the Surveillance Provisions because Petitioners’ First Amendment challenge should have been

dismissed under the same standing analysis that doomed

their vagueness claims. Supra Part II.C. Moreover, because the so-called Surveillance Provisions are (at most)

content-neutral regulations of speech incidental to conduct, the Fifth Circuit was entirely in line with other circuits in applying intermediate scrutiny. And the court

24

was entirely correct that the Surveillance Provisions easily pass that test.

A. A lack of standing renders this a poor vehicle

to resolve any dispute regarding Petitioners’

First Amendment claims.

To start, the parties do agree on one thing: The same

standing analysis that governed Petitioners’ due process

claims should have governed the First Amendment

claims. Pet.16. The Fifth Circuit should have dismissed

both because under this Court’s recent precedent, see,

e.g., Driehaus, 573 U.S. at 161-64, the Fifth Circuit was

wrong to hold based on its own precedent that “[u]nlike

in other constitutional contexts, in the speech context, [a

court] may assume a substantial threat of future enforcement absent compelling contrary evidence.”

Pet.App.13a. Because further review in this Court will

only result in a dismissal without prejudice (for lack of

standing) instead of a dismissal with prejudice (for lack

of merit), this is a poor vehicle to resolve any conflict that

may (but does not, infra Part III.B) exist regarding the

standard of First Amendment scrutiny that applies to

the Surveillance Provisions.

As noted above, supra 15-16, this Court’s recent precedent does not allow a court to presume standing any

time the First Amendment is involved. For example, in

Clapper v. Amnesty International USA, the Court held

that a plaintiff did not have standing to assert a First

Amendment challenge to a provision of FISA based on

the plaintiffs’ belief—or presumption—that their communications would be intercepted. 568 U.S. 398, 410

(2013). To the contrary, the Court chided the plaintiffs

because they “merely speculate and make assumptions

about whether their communications with their foreign

contacts will be acquired” rather than provide evidence

25

of “specific facts” demonstrating that the relevant communications would be intercepted. Id. at 412.

Clapper is irreconcilable with any notion that a court

may “assume” a substantial threat of enforcement, in the

First Amendment context or otherwise. Pet.App.13a.

And its reasoning extends to any law that “authorizes”

but does not “mandate” the actions a plaintiff claims to

fear. Clapper, 568 U.S. at 412. Under such circumstances, a plaintiff’s allegation that he will be subject to

impermissible enforcement is “necessarily conjectural.”

Id. Such plaintiffs can “only speculate” as to how a particular government actor will “exercise [his] discretion in

determining which [regulated actions] to target.” Id.

And it is never the government’s “burden to disprove

standing by revealing details” of how it intends to enforce the statute. Id. at 412 n.4.

The Fifth Circuit’s standing analysis falls apart beyond this problem. In particular, the court relied on the

same single seven-year-old prosecution of a non-journalist brought by Higgins’ predecessor to establish traceability as to Higgins. See supra 13. That is insufficient to

connect Petitioners’ (nonexistent) injury to him for the

reasons discussed above, see supra 9-13—particularly

when Petitioners have not shown concrete plans to return to Hays County and use drones to take photographs

there. See Lujan, 504 U.S. at 564.

B. The second question presented does not

implicate a circuit split.

Even if Petitioners did have standing to assert their

First Amendment claim, they are wrong that the Fifth

Circuit’s decision to apply intermediate instead of strict

scrutiny to the Surveillance Provisions implicates a circuit split. Pet.25, 28, 33. Rather, the cases that

26

Petitioners cite involve different courts interpreting different state laws. See Pet.25, 28, 33.

1. Most of the cases upon which petitioners rely facially discriminate based on the content—or even the

ideological purpose behind—the photographs being captured. The Privacy Act does not.

Ness v. City of Bloomington involved a city ordinance

providing that “[n]o person shall intentionally take a

photograph or otherwise record a child without the consent of the child’s parent or guardian.” 11 F.4th 914, 922

(8th Cir. 2021). The court held the ordinance was content-based and subject to strict scrutiny because an official “must examine the content of the photograph or

video recording to determine whether a child’s image is

captured.” Id. at 924. That ordinance is different from

the Privacy Act because the former forbade the capture

of images of children. Id. By contrast, as the Fifth Circuit

ably explained, the Privacy Act would permit the same

images to be captured with tools other than drones—or

even drones flown under a certain altitude. Pet.App.30a.

Like the now-vacated decision in Project Veritas v.

Schmidt, 95 F.4th 1152 (9th Cir. 2024), Animal Legal Defense Fund v. Wasden, involved a content-based law,

specifically, a statute forbidding individuals from entering “an agricultural production facility that is not open to

the public and, without the facility owner’s express consent . . . mak[ing] audio or video recordings of the conduct of an agricultural production facility’s operations.”

878 F.3d 1184, 1191 (9th Cir. 2018). The Ninth Circuit

held that statute content-based and subject to strict

scrutiny because it “prohibits the filming of agricultural

operations but nothing else,” such that “its application

explicitly pivots on the content of the recording.” Id. at

1204. But again, the statute at issue did not turn on the

27

device by which the image was captured, nor did it permit certain devices in certain circumstances.

Next, International Outdoor, Inc. v. City of Troy, involved a city ordinance that required the payment of a

fee to place certain types of signs but not others. 77 F.4th

432, 434 (6th Cir. 2023). One had to seek a permit and pay

a fee to place several types of signs but did not have to

do so for “real-estate signs,” “political signs,” “holiday

signs,” and other exempted categories. Id.; see id. at 436

n.1 The court held that at least some of the exceptions in

the ordinance were content based “because they discriminated based on the topic discussed or the idea or message expressed.” Id. at 436 n.1. But again, the Privacy

Act turns not on the content of any photograph but

where and “how” it is captured. Pet.App.30a.

Brown v. Kemp involved a Wisconsin statute that

prohibited acts “intended to impede or obstruct a person

who is engaged in lawful hunting, fishing, or trapping,”

including “[p]hotographing, videotaping, audiotaping, or

through other electronic means, monitoring or recording

the activities of the person.” 86 F.4th 745, 757 (7th Cir.

2023). True, the statute also prohibited using a drone to

capture such recordings, but that was not the reason the

Seventh Circuit found the law impermissible. Id. at 757.

Instead, the court held that because the statute “cannot

be justified without reference to the underlying content

of the expression, it is not content-neutral and is subject

to strict scrutiny.” Id. at 782. In fact, it was even worse

than that: The statute was found to discriminate based

on viewpoint because it “applies only to expressive activities that are ‘intended to impede or obstruct’ hunters or

hunting activities.” Id. at 781.

The Privacy Act contains no comparable discriminatory language. Instead, as the Fifth Circuit explained, it

28

“distinguishes among photographers.” Pet.App.32. It

thus does not break with cases addressing laws that distinguish “among photographs.” Pet.App.32a; contra

Pet.33.

2. Nor did the Fifth Circuit contribute to a circuit

split by holding that strict scrutiny should not apply even

though the Privacy Act favors some drone operators over

others. Contra Pet.33. Petitioners’ argument to the contrary mischaracterizes the cases upon which they rely.

People for Ethical Treatment of Animals, Inc. v.

North Carolina Farm Bureau Federation did not hold

that “restrictions distinguishing among different speakers, allowing speech by some but not others” are always

subject to strict scrutiny because they “are as repugnant

to the First Amendment as are restrictions distinguishing among viewpoints.” 60 F.4th 815, 831 (4th Cir. 2023);

contra Pet.33. Rather, it observed that “as instruments

to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too

often simply a means to control content.” PETA, 60

F.4th at 831. The Fourth Circuit ultimately held that the

challenged provision was subject to strict scrutiny because the speaker-based distinction served as a proxy for

viewpoint discrimination by excluding those more likely

to speak favorably on the subject at issue. See id.

Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011), is even

more off point because it did not involve a challenge to a

statute at all. Instead, it involved a mayor who prevented

the plaintiff from speaking before the city council in retaliation for how the plaintiff spoke to a city employee.

“The content-based nature of [the mayor’s] restriction

on [plaintiff] is highlighted by [the mayor’s] demand that

[plaintiff] apologize regarding statements attributed to

him by a city employee.” Id. at 870. The mayor argued

29

that his restriction on plaintiff’s speech was “justified as

a sanction” which the court rejected because the mayor

“used [plaintiff’s] prior speech to prohibit subsequent

protected speech.” Id. at 871-72. Because this case involves nothing of the sort, the Fifth Circuit hardly created a circuit split worthy of this Court’s review.

C. The Surveillance Provisions are not subject to

strict scrutiny. 7

Finally, although the Fifth Circuit’s reasoning was

slightly off, review is unnecessary because its judgment

was correct on the merits. Specifically, the Fifth Circuit

should have awarded judgment to Respondents because

the First Amendment has nothing to say about regulating drone flight. But having concluded that using a drone

to take a picture mixes speech and conduct, the Fifth Circuit was entirely correct to subject the Privacy Act to intermediate scrutiny.

1. The First Amendment does not protect the

right to fly a drone.

The Fifth Circuit should have held this case does not

implicate the First Amendment at all because this Court

has squarely “rejected the view that ‘conduct can be labeled ‘speech’ whenever the person engaging in the conduct thereby intends to express an idea.’” Rumsfeld v. F.

for Acad. & Institutional Rts., Inc., 547 U.S. 47, 65-66

(2006) (“FAIR”) (quoting United States v. O’Brien, 391

U.S. 367, 376 (1968). Instead, the First Amendment protects only conduct that is “inherently expressive.” Id. at

Respondents reserve the right to make additional arguments

regarding why the Surveillance Provisions are not subject to strict

scrutiny, and more broadly, do not violate the First Amendment.

7

30

66. There is nothing inherently expressive about flying a

drone, nearly all of which carry some form of camera.

Though the Privacy Act might prohibit a specific

means of gathering information that may ripen into expressive activity, such as publishing a photograph, the

“right to speak and publish does not carry with it the unrestrained right to gather information.” Zemel v. Rusk,

381 U.S. 1, 17 (1965). As this Court held over half a century ago, “[t]here 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 . . . but that

does not make entry into the White House a First

Amendment right.” Id. at 16-17. The same reasoning applies here.

2. The Surveillance Provisions are at most

subject to intermediate scrutiny.

Assuming the Fifth Circuit was correct that flying a

drone specifically for newsgathering even implicates the

First Amendment, it correctly applied intermediate

scrutiny for three reasons.

First, the Surveillance Provisions at most regulate

the combination of speech and conduct. “If combining

speech and conduct were enough to create expressive

conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it,” or by photographing it. FAIR, 547 U.S. at 66. Instead, under

O’Brien, and its progeny, “when ‘speech’ and ‘nonspeech’ elements are united in a course of conduct, a valid

governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Kleinman v. City of San Marcos, 597

F.3d 323, 328 (5th Cir. 2010); see Clark v. Cmty. for

31

Creative Non-Violence, 468 U.S. 288, 293 (1984). Because

flying a drone with a camera is at most combining speech

and conduct, the intermediate scrutiny test in O’Brien

should apply.

Second, as the Fifth Circuit explained, because the

Surveillance Provisions “classify images as lawful or unlawful based not on what is in the picture, but on the basis of how the picture is taken,” they can be read as content-neutral time, place, and manner restrictions.

Pet.App.30a. That is because far from prohibiting the

capture of an image of “an individual or privately owned

real property,” contra Pet.23, they prohibit the use of an

“unmanned aircraft” to capture such an image “with the

intent to conduct surveillance,” Tex. Gov’t Code

§ 423.003(a). On its face, that is a manner restriction because the same image can be captured with the consent

of the person whose privacy is at issue, id. 423.002(a)(6),

or even without that consent subject to limitations, id.

§ 423.002(a)(14).

Reed v. Town of Gilbert, 576 U.S. 155 (2015), and City

of Austin v. Reagan National Advertising of Austin,

LLC, 596 U.S. 61 (2022), are not to the contrary. Reed

held only that even without viewpoint discrimination, a

government cannot “ban[] the use of sound trucks for political speech” because it is not regulating all speech “in

an evenhanded, content-neutral manner.” 576 U.S. at

169, 173. The Privacy Act does not purport to do so. It

permits photographers to take any picture they like. It

merely requires that when a drone photographer surveils “an individual or privately owned real property,” id.

§ 423.003(a), he can only take photographs from a public

place and below a certain height, id. § 423.002(a)(14), obtain consent, id. § 423.002(a)(6), or fit another statutory

exception.

32

Reagan is also off point because it involved a challenge to a city ordinance restricting speech on a person’s

own property. See Reagan, 596 U.S. at 66-67. As the

Fifth Circuit correctly observed, “there is an important

and obvious distinction between recording in public

spaces and unauthorized recording on private property”

of someone else. Pet.App.34a-35a (internal quotation

marks omitted). And this Court “categorically reject[ed]

the argument that a vendor has a right under the Constitution . . . to send unwanted material into the home of

another” more than 50 years ago. Rowan v. U.S. Post Off.

Dept., 397 U.S. 728, 738 (1970). Just as “the asserted

right of a mailer . . . stops at the outer boundary of every

person’s domain,” id., so does the right of a drone pilot—

even if he seeks to “gather news,” Houchins v. KQED,

Inc., 438 U.S. 1, 11 (1978) (plurality op.).

Third, that the Privacy Act favors some drone operators over others does not make it content-based. A statute that distinguishes based “only upon the manner in

which speakers transmit their messages” and “not upon

the messages they carry” is not content-based so long as

the distinction is not employed as “a subtle means of exercising a content preference.” Turner Broad. Sys., Inc.,

v. F.C.C., 512 U.S. 622, 645 (1994). Under the Privacy

Act, any speaker may engage in drone photography if

done from a public place and below a certain height, Tex.

Gov’t Code § 423.002(a)(14), or with the consent of the

private property owner, id. § 423.002(a)(6). And the Surveillance Provisions apply to no one if the drone operator

lacks the intent to surveil. Id. § 423.003(a). Accordingly,

any speaker-based distinction turns on the speaker’s intent, not the content of his message, and the Fifth Circuit

was right to subject the Privacy Act to intermediate

scrutiny.

33

3.

The Fifth Circuit’s application of

intermediate scrutiny does not merit

review.

Though the petition complains that the Fifth Circuit

applied an “anemic version of intermediate scrutiny”

that “departs dramatically from the meaningful review

this Court has” applied in other cases, such an argument

does not justify review. Pet.37-38. This Court exists “to

say what the law is,” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803)—not to review findings of fact or

correct the misapplication of law by lower courts, see

Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336

U.S. 271, 275 (1949). Petitioners’ gripes about how the

Fifth Circuit applied the intermediate-scrutiny standard

are precisely the sort of fact-bound requests for error

correction that this Court routinely declines. SHAPIRO,

supra at 508-09. The Court should do so again here.

34

C O NCL USI O N

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MICHAEL A. SHAUNESSY

IAN M. DAVIS

KEN PAXTON

Attorney General of Texas

MCGINNIS LOCHRIDGE

LLP

1111 West 6th St.

Building B, Suite 400

Austin, TX 78703

(512) 495-6000

BRENT WEBSTER

First Assistant Attorney

General

Counsel for Kelly Higgins

AARON L. NIELSON

Solicitor General

LANORA C. PETTIT

Principal Deputy Solicitor

General

Counsel of Record

BENJAMIN W. MENDELSON

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Lanora.Pettit@oag.texas.gov

(512) 936-1700

AUGUST 2024

Counsel for Steven McCraw

and Dwight Mathis