Reply 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

Sn the Supreme Court of the Guited States

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION,

et al.,

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

REPLY BRIEF FOR PETITIONERS

Leah M. Nicholls James A. Hemphill

PUBLIC JUSTICE Counsel of Record

1620 L Street NW GRAVES, DOUGHERTY,

Suite 630 HEARON & Moopy, P.C.

Washington, DC 20036 401 Congress Avenue

Suite 2700

Hannah Kieschnick Austin, Texas 78701

PUBLIC JUSTICE (512) 480-5762

474 14 St., Suite 610 jhemphill@gdhm.com

Oakland, CA 94612

Counsel for Petitioners

(Additional Counsel on Inside Cover)

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, DC 20002

Mickey H. Osterreicher

General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

FINNERTY OSTERREICHER

& ABDULLA

70 Niagara Street

Buffalo, NY 14202

Alicia Wagner Calzada

Deputy General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

ALICIA WAGNER CALZADA,

PLLC

926 Chulie Drive

Suite 16

San Antonio, TX 78216

David A. Schulz

Tobin Raju

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

CORPORATE DISCLOSURE STATEMENT

The Corporate Disclosure Statement in the

Petition for Writ of Certiorari remains accurate.

CORPORATE DISCLOSURE STATEMENT

TABLE OF AUTHORITIES... eecceeneeeeeees 11]

ARGUMENT

A.

C.

D.

11

TABLE OF CONTENTS

The Fifth Circuit’s bifurcated standing

analysis conflicts with this Court’s

precedent and creates a circuit split that

WII] SOW CONFUSION. .........ccccccccccccccccceccecceccecees 1

The Fifth Circuit's rejection of strict

scrutiny conflicts with this Court’s

precedent, deepens existing circuit

conflicts and will sow confusion. .................. 6

Respondents’ vehicle concerns’ are

LIUSOLY. ....... cece ccc eececcecceceecccecceseecescesesseecess 10

Chapter 423 inflicts real harm that

WALTANES LOVICW. .....cccccccccccccccccccccceccccecceeeces 13

CONCLUSION ...0 oo ccccceeeeccceeeececeeeeceeneeeeeeneeeees

111

TABLE OF AUTHORITIES

Page(s)

Cases

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) woe cecceccecceeceeceeeeeeeees 12

Babbitt v. United Farm Workers Natl Union,

442 U.S. 289 (1979) oo ceccecceccescescsceseeseees 1,3

Brown v. Ent. Merchs. Assn,

564 U.S. 786 (2011) wo. cecceccscceecesceseeseeseees 8

California v. Ciraolo,

A76 U.S. 207 (1986) 0... ccc ccc cececeecceceeseeeeseneees 9

California v. Texas,

593 U.S. 659 (2021) ooo. eecceccceeceseceeseeeseeeeees 2

City of Austin v. Reagan Natl

Advertising of Austin, LLC,

596 U.S. 61 (2022) ooo cece cece eeceeeceesceeceesseeeeees 7

City of Los Angeles v. Lyons,

A461 U.S. 95 (1988) ooo ec ees ceeceecceeceeeseeeseeeeenes 4

Clapper v. Amnesty Intl USA,

568 U.S. 898 (2018) ooo. ccecceecceeceesceeseeeseeeeees 3

Cohen v. Cowles Media Co..,

501 U.S. 668 (1991) ooo. ceecceeceeeseeeeeeees 10

Collins v. Yellin,

594 U.S. 248 (2021) ooo. eec ccc eeceeeseeseeeseeeeees 5

Crane v. Texas,

766 F.2d 193 (5th Cir. 1985) oo ee cece eee 12

Greenberg v. Lehocky,

81 F.4th 376 (8d Cir. 2028) oo. ceecceeceeeceees 2

1V

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010) oo ecceccceceecceeceeceees 2, 3,5

lancu v. Brunetti,

588 U.S. 388 (2019) oo... ceeceecceeceeceeeseeeeneees 12

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022)... eee eee 8

Kentucky v. Graham,

473 U.S. 159 (1985) ooo ec cece sec eeceeceeeeeeeeees 4

Lanzetta v. New Jersey,

306 U.S. 451 (1989) ooo. eec ccc cecceecesceeeseeeeeees 6

Minn. Comm of Revenue,

AGO U.S. 575 (1988) ooo. cc eeccscceeceecesseeeseeceees 10

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) ooo. ceeceecceeceeeceeeeees 11

N. Ins. Co. of New York v. Chatham Cnty.,

D547 U.S. 189 (2006) o.oo ccc ecc cece eeceeceeeeeeeeeees 12

N.Y. Times Co. v. United States,

408 U.S. 7138 (1971) woo cec cece eeceeceseeeeseeceees 13

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021)... ec eee cence 7

Reed v. Town of Gilbert,

576 U.S. 155 (2015) oo... cecc cece eeceeceeceseeeeseeees 7

Rumsfeld v. F. for Acad. &

Institutional Rights., Inc.,

547 U.S. 47 (2006) ou... cece ccc eececcecceecenseeeceeseeees 8

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) wee ceccecceeccesceeceeseees 7,8

Steffel v. Thompson,

415 U.S. 452 (1974) ooo eeccecceccescceeceseeeeenes 4

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) vececccceccssscscscsesseseseeeees

Tandon v. Newsom,

593 U.S. 61 (2021) cecccccccccescssscscsesesseseseseees

Turtle Island Foods, S.P.C. v. Stratn,

65 F.4th 211 (5th Cir. 2023)...cccccccccccceeee.

United States v. O’Brien,

391 U.S. 367 (1968) .cccccccccscssscsescseseeseseseees

Vidal v. Elster,

602 U.S. 286 (2024) voccccccccccscscscscsesssseecseees

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

484 U.S. 383 (1988) ooo. ee cece eens

Kx parte Young,

92.09 U.S. 123 (1908) ..ecccccccsssescscsesesseseecseees

REPLY BRIEF FOR PETITIONERS

Respondents’ opposition underscores the need for

certiorari. It concedes the Fifth Circuit’s decision was

wrong to impose different standing requirements to

challenge a speech-chilling law depending on whether

the claim is brought under the First or Fourteenth

Amendment. Its cursory defense of the Fifth Circuit's

First Amendment holding highlights the growing

confusion among the circuits about what constitutes a

“content-based” regulation requiring strict scrutiny.

And unable to deny the Fifth Circuit’s departures

from precedent, it offers up illusory vehicle concerns

that ignore both the undisputed record and the lower

courts’ factual findings. None of its arguments

diminishes the need for certiorari to resolve the

consequential questions presented.

A. The Fifth Circuit’s bifurcated standing

analysis conflicts with this Court’s

precedent and creates a circuit split that

will sow confusion.

1. Respondents concede that the Fifth Circuit's

due process standing analysis conflicts with Babbitt v.

United Farm Workers Natl Union, 442 U.S. 289

(1979), but mistakenly claim that Babbitt is no longer

sood law. Opp.15-16. This Court has never questioned

Babbitt’s holding that a credible threat of enforcement

of criminal law sufficient to confer standing exists

where government officials have “not disavowed any

intention of’ enforcing the challenged law, 442 U.S. at

302, and to the contrary has repeatedly endorsed it.

In Susan B. Anthony List v. Driehaus, for example,

the Court cited Babbitt in finding a credible threat of

enforcement on facts similar to those here, where the

government did not “disavow[] enforcement” of a

criminal law and administrative proceedings had

previously been initiated to determine whether

prosecution was warranted. 573 U.S. 149, 164-67

(2014); accord Virginia v. Am. Booksellers Ass’n, Inc.,

484 U.S. 3838, 393 (1988) (standing for vagueness and

First Amendment challenge where government did

not disavow enforcement); Holder v. Humanitarian L.

Project, 561 U.S. 1, 15-16 (2010) (same); see also

Pet.11-14.

Driehaus did not implicitly overrule this wall of

authority by referencing a “substantial” risk of harm

as Respondents contend. See Greenberg v. Lehocky, 81

F.4th 376, 386 (8d Cir. 2023) (explaining that

Driehaus, Holder, and Babbitt all stand for the same

refusal-to-disavow requirement); Turtle Island Foods,

S.P.C. v. Strain, 65 F.4th 211, 218 (5th Cir. 2023)

(equating Babbiti’s sufficient threat of enforcement

test with Driehaus test). Nor did California v. Texas,

which simply stands for the proposition that the text

of a regulation whose violation carried a $0 penalty

with “no means of enforcement” is insufficient by itself

to establish traceability and redressability. 593 U.S.

659, 668-74 (2021) (citing favorably Babbitt and Am.

Booksellers).

2. Respondents also concede that the Fifth Circuit

incorrectly deployed different tests for standing to

bring a constitutional challenge against a speechchilling law depending on whether that challenge is to

the law’s vagueness or its content discrimination.

Opp.24. When speech rights are demonstrably

chilled, this Court has repeatedly applied a single test

for standing to bring both due process and First

Amendment challenges. See Babbitt, 442 U.S. at 298-

3038; Holder, 561 U.S. at 14-16. Left unreviewed, the

Fifth Circuit’s bifurcated approach will sow confusion

among circuits and multiply litigation. See Pet.14-16.

3. Respondents do not dispute the Fifth Circuit’s

departure from the standing requirements of other

circuits, but criticize the conflicting decisions as

wrongly decided. Opp.15. Even if that were the case,

and it is not (see Pet.16-18), only this Court can

resolve this dispute among the circuits.

4. Respondents say further review is unnecessary

because Petitioners lack standing to bring their due

process claim, even if the Fifth Circuit got the

standard wrong. Opp.21-23. Not so. The undisputed

record establishes that (1) Petitioners have “an

intention to engage in a course of conduct arguably

affected with a constitutional interest,” (2) this

conduct is “proscribed by a statute,” and (3) “there

exists a credible threat of prosecution,” which is all

Article II] requires. Driehaus, 573 U.S. at 159

(citation omitted).

Respondents simply ignore the record in claiming

that Petitioners base their standing on the mere fact

that Chapter 423 is on the books, Opp.15-16, and

“presume standing because speech rights are

implicated, id. at 24 (citing Clapper v. Amnesty Intl

USA, 568 U.S. 398, 410 (20138)). Undisputed record

facts establish both the Hays County District

Attorney’s past prosecution of “drone-related activity”

under Chapter 423,! ROA.606; Pet.App.8a, and his

refusal to disavow future enforcement, ROA.592-94:;

Pet.App.15a-16a; see also Pet.13. They also establish

the past police warning in Hays County issued to a

member of Petitioner NPPA for violating Chapter 423,

ROA.650-51; Pet.App.6a-7a, independently

demonstrating that Petitioners’ concern with

enforcement is not “imaginary or speculative.” See

Steffel vu. Thompson, 415 U.S. 452, 459 (1974). The

record further establishes Petitioners’ intent to

conduct drone journalism in Hays County that is

being thwarted by fear of prosecution. ROA.649-56.

Respondents equally ignore this record in

suggesting that “prospective relief cannot rest entirely

on a defendant’s allegedly unconstitutional acts in the

past.” Opp.22 (citing City of Los Angeles v. Lyons, 461

U.S. 95, 105 (1983)). The suggestion also disregards

this Court’s instruction in Driehaus that past

enforcement is “good evidence” that a threat of

enforcement is not “chimerical.” 573 U.S. at 149. Nor

is traceability an issue here. The district court

correctly found that the District Attorney has both the

power and duty under state law to enforce Chapter

1 That the prior prosecution was brought by

Higgins’ predecessor is irrelevant as this action is

against Higgins in his official capacity as District

Attorney. See Kentucky v. Graham, 473 U.S. 159, 166

(1985) ([A]n official-capacity suit is, in all respects

other than name, to be treated as a suit against the

entity.”) (citations omitted).

423, creating a legitimate fear of prosecution beyond

“the provision of the law itself.” Pet.App.60a-61a; see

Collins v. Yellin, 594 U.S. 243-44 (2021). 2

5. Respondents finally deny a need for review by

disputing the merits of Petitioners’ due process claim,

contending that “surveillance” in Chapter 423 is not

impermissibly vague. Opp.18-21. Respondents admit,

however, that “surveillance” has more than one

meaning, Opp.19, acknowledge it may include

newsgathering, ROA.945, as the district court found,

Pet.App.79a-81a, and have refused to adopt a position

on whether Chapter 423 encompasses newsgathering,

ROA.580; Pet.App.79a-80a. If Respondents were

correct that “surveillance” in Chapter 423 is clearly

limited to improper, “clandestine” observation (a

limitation absent from the statute’s text) and thus

excludes ordinary newsgathering, Texas would not

have needed to include 21 exceptions for purposes it

favors. See Pet.4. Nor would Respondents fail to

disavow enforcement against journalists or Texas

news organizations continue to refrain from capturing

and publishing drone photography. Pet.3-5. As this

Court has made plain, a law “so vague that men of

2 Respondents’ argument that the Fifth Circuit

wrongly found standing for the First Amendment

claim, Opp.24-25, fails for the same reasons. Whether

a speech-chilling law is challenged under the First or

Fourteenth Amendments, a credible threat of

enforcement is sufficient for standing, even absent

“actual prosecution.” Am. Booksellers, 484 U.S. at

393; Holder, 561 U.S. at 15-16.

common intelligence must necessarily guess at its

meaning and differ as to its application, violates the

first essential of due process of law.” Lanzetta v. New

Jersey, 306 U.S. 451, 453 (1989).

B. The Fifth Circuit’s rejection of strict

scrutiny conflicts with this Court’s

precedent, deepens’ existing circuit

conflicts and will sow confusion.

1. Respondents claim that the Fifth Circuit’s

refusal to apply strict scrutiny to Chapter 423 does not

warrant review because the Fifth Circuit found that

the law does not regulate based on content. Opp.30-

32. To the contrary, that is precisely the First

Amendment holding in need of review. The Fifth

Circuit’s definition of what constitutes a “contentbased” law defies this Court’s precedent.

In the Fifth Circuit’s view, Chapter 423 imposes a

content neutral time, place, or manner restriction

because it does not prohibit any content altogether—

the law permits the disfavored content “to be captured

with tools other than drones,” Opp.26, and prohibits

drone photographs of specific content only when a

drone is flown above 8 feet, Opp.31. This definition of

content neutrality simply blinks away the contentbased distinctions that must be made to determine

whether Chapter 423’s purported time, place, or

manner restriction applies in the first place. Chapter

423 imposes criminal sanctions only on images

depicting specific content—private property or

individuals on private property. See Pet.23-25, 27-28.

Under the Fifth Circuit’s reasoning, the sign

ordinance in Reed v. Town of Gilbert would itself be

content neutral, because it did not prohibit

communicating any content altogether—it permitted

regulated content to be communicated in any manner

other than on a sign, and prohibited regulated content

only on signs of certain sizes subject to specific time

limits. 576 U.S. 155, 159-61 (2015). The Fifth Circuit

squarely rejects Reed and the Court’s repeated

instruction that a law is content based if it targets

First Amendment-protected speech because of its

communicative content. See, e.g., Vidal v. Elster, 602

U.S. 286, 294-95 (2024); Sorrell v. IMS Health Inc.,

564 U.S. 552, 563-64 (2011); see also Pet.24, 27-28.

2. Respondents repeat this flawed reasoning to

deny the circuit splits identified in the Petition that

the Fifth Circuit deepens. Opp.26-28. For example,

they find no conflict with the holding in Ness v. City of

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

there an officer had to “examine the content of the

photograph” to know if a law requiring parental

consent to photograph a child was violated. Opp.26.

An officer must equally “examine the content of a

photograph’ to know if it contains content prohibited

by Chapter 423 but, in conflict with Ness, the Fifth

Circuit found Chapter 423 not content based. See

Pet.25, 28-29. And Respondents do not even attempt

to reconcile the growing circuit conflict about when a

need to consider content renders a regulation subject

to strict scrutiny after City of Austin v. Reagan

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

(2022). See Pet.26-30.

3. Respondents reject the findings of both the Fifth

Circuit and district court that Chapter 423 regulates

First Amendment-protected activity, Pet.App.25a-

28a, 67a-69a, to argue that the law “does not implicate

the First Amendment at all.” Opp.29-30. Respondents

claim Chapter 423 simply regulates drone flight, but

its prohibition on “surveillance” is far more than a

flight regulation. It criminalizes both “captur[ing] an

image’ and publishing it. Pet.38. Both prohibitions

plainly trigger First Amendment scrutiny. See Sorrell,

564 U.S. at 570 (the “creation and dissemination of

information are speech within the meaning of the

First Amendment’); Brown v. Ent. Merchs. Ass’n, 564

U.S. 786, 792 n.1 (2011) (First Amendment applies to

“creating, distributing, [and] consuming speech’);

Irizarry v. Yehia, 38 F.4th 1282, 1292 (10th Cir. 2022)

(filming is entitled to First Amendment protection).

4. Respondents then defend the Fifth Circuit’s use

of intermediate scrutiny by asserting that Chapter

423 is a regulation of conduct with only incidental

effects on speech, citing Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 547 U.S. 47, 65-

66 (2006) “FAIR”) and United States v. O’Brien, 391

U.S. 367 (1968). Opp.380. Those cases are entirely

inapposite. MAIR involved a law that required schools

to provide military recruiters equal access to their

campuses, a mandate that necessarily required

schools to provide some assistance implicating speech

(e.g., sending scheduling emails). 547 U.S. at 61-62.

But the compelled speech at issue was entirely

incidental to the regulation of non-expressive conduct.

Id. at 62. O’Brien upheld a law prohibiting destroying

draft cards, pure conduct that in some contexts could

be expressive. 391 U.S. at 375. In stark contrast, the

Surveillance Provisions are not “incidental

limitations” on the regulation of non-expressive

conduct, they directly target expression itself—

prohibiting the capture and publication of disfavored

images. Indeed, drones ability to capture images 1s

the reason Texas regulates them.

Chapter 423 fails intermediate scrutiny, even if it

applied. While protecting privacy can be a valid

sovernmental interest, Chapter 423’s prohibitions

apply almost entirely where no privacy interest exists.

It proscribes images of any private property, even if

caught in background while covering a news story

from a public space. See Pet.App.76a, 80a. Texas has

no valid governmental interest in_ prohibiting

photographs of that which is open to the naked eye.

See California v. Ciraolo, 476 U.S. 207, 2138 (1986) (no

expectation of privacy in Fourth Amendment context

where “[a]Jny member of the public flying in this

airspace who glanced down could have seen

everything that these officers observed”). In those

situations where privacy interests do exist, privacy

from drone photography is already adequately

protected by existing Texas law. See, e.g., ROA.577-

578; Pet.App.74a-75a. Chapter 423 fails even under

FAIR and O’Brien.

5. Respondents fare no better in arguing that

review is unwarranted because Chapter 423’s speaker

preferences are not proxies for content or viewpoint

discrimination. Opp.28, 32. Respondents concede that

Chapter 423 deprives journalists from using a

10

“valuable tool,” Opp.32, but ignore that virtually all

other professionals who rely on drones are exempted

from the law. See Pet.4-5. Even a generally applicable

law that more than incidentally limits the press’s

ability to gather and report the news raises First

Amendment concerns, e.g., Cohen v. Cowles Media

Co., 501 U.S. 6638, 669 (1991), and Chapter 423 with

its 21 exemptions is anything but generally

applicable. This differential treatment suggests an

intent to suppress expression by the press.

Minneapolis Star & Trib. Co. v. Minn. Comm’ of

Revenue, 460 U.S. 575, 585 (1983). A law that directly

restricts gathering and publishing information and

then exempts others but not those performing press

functions should necessarily trigger strict scrutiny

siven the First Amendment’s express protection of

“the press.” See Pet.34-36; cf. Tandon v. Newsom, 593

U.S. 61, 62-64 (2021) (exemption-riddled regulation

failed strict scrutiny in free exercise context).

C. Respondents’ vehicle concerns’ are

illusory.

This case presents an ideal vehicle to resolve the

questions presented and Respondents’ arguments to

the contrary, Opp.8-13, are makeweights.

1. This case presents a clean facial challenge to

Chapter 423. In arguing otherwise (for the first time),

Respondents misrepresent this case as a hybrid facial

challenge “but only as applied to journalists.” Opp.8.

This misstates the Complaint, ROA.38-40,

Respondents’ prior understanding of the case,

ROA.1104, 1116, 1176-1177, and the lower courts’

11

treatment of the case as a routine facial challenge,

Pet.App.8a, 37a, 76a-77a. Respondents’ argument

conflates the nature of Petitioners’ challenge to the

vague and content-based law with their

demonstration, for purposes of Article III standing, of

the chilling effect and injury-in-fact the law inflicts on

each of them—an association of visual journalists, a

trade organization of Texas newspapers, and a

freelance journalist.

Respondents argue that Moody v. NetChoice, LLC,

144 §. Ct. 2383 (2024), precludes review because

Chapter 423’s unconstitutional applications have not

been weighed against its constitutional ones. Opp.8.

This, too, misstates the record. Unlike NetChotice, a

preliminary injunction dispute that reached the Court

with an inadequate factual record and “critical issues”

that were never briefed below, 144 8S. Ct. at 2399, this

appeal follows summary judgment entered on an

undisputed factual record drawn from discovery. See

Pet.App.50a-56a. The district court here specifically

found that “a substantial number of [Chapter 423’s]

applications are unconstitutional, judged in relation

to the statutes plainly legitimate sweep.”

Pet.App.76a-77a. As the district court explained, the

record establishes that Chapter 423 effectively

outlaws the use of drones for newsgathering about

private property, which “constitut[es] 95 percent of

the state,” and does so even when _ drones

“indisputably do[] not pose the risk that the State

claims.” See Pet.App.37a, 76a-77a; see also ROA.1092-

93.

12

Respondents’ further argument that Chapter 423’s

expansive definition of “image” means Petitioners

have failed to “address the full range of activities the

law[] covers[]” also fails. Opp. 8. Regardless of the

medium of an image, Chapter 423 always

discriminates based on its content. See Pet.23-24, 27-

28. The district court determined that Chapter 423

failed strict scrutiny because under existing Texas

laws there is no “interest that is unprotected absent

Chapter 423” and Chapter 423 is “not narrowly

tailored to any governmental purpose.” Pet.App.74a-

77a. These failures are “categorical—present in every

case.” See Ams. for Prosperity Found. v. Bonta, 594

U.S. 595, 615 (2021) (confirming district court’s

factual findings supporting successful facial challenge

to First Amendment-chilling law); cf. lancu uv.

Brunetti, 588 U.S. 388, 398-99 (2019) (explaining

viewpoint-discriminatory laws are not “salvageable by

virtue of [their] constitutionally permissible

applications’).

2. Respondents are equally misdirected in

claiming their purported sovereign immunity renders

this a poor vehicle. Opp.9-11. The Fifth Circuit and

district court correctly held that the District

Attorney—a county official—is not entitled to

sovereign immunity. Pet.App.22a, 66a. Eleventh

Amendment sovereign immunity applies only to

states and state officials, not county officials. N. Ins.

Co. of New York v. Chatham Cnty., 547 U.S. 189, 1938-

94 (2006); see also Crane v. Texas, 766 F.2d 198, 195

(5th Cir. 1985) (holding that Texas district attorneys

are not entitled to sovereign immunity). And even if

13

Higgins were eligible for sovereign immunity, the Ex

parte Young exception to immunity would apply

because the District Attorney has the authority and

duty to prosecute violations of Chapter 423 and has

done so. App.18a. See Ex parte Young, 209 U.S. 128,

157 (1908) (denying immunity where defendant has

“some connection’ to enforcement).

D. Chapter 423 inflicts real harm that

warrants review.

Respondents’ obfuscation of the law cannot hide

the undisputed and ongoing harm to Petitioners’

constitutional rights caused by Chapter 428.

Pet.App.14a-16a, 60a. Drones are an invaluable tool

for which no adequate alternative exists for reporting

on many of the most important public health and

safety stories. See ROA.29, 37; Pet.App.55a-56a & n.2.

For example, Chapter 423 prevented a TV station

from obtaining images that would have “saved lives”

by alerting viewers to the imminent threat of a

devastating fire as it raged through private land. See

Br. Amici Curiae Texas Association of Broadcasters at

10-14. The “press fulfill[s] an essential role in our

democracy” to “inform the people,” and Chapter 423

today is preventing Texas journalists from doing this.

See N.Y. Times Co. v. United States, 403 U.S. 718, 717

(1971) (Black, J., concurring).

CONCLUSION

This Court should grant the petition for certiorari.

Leah M. Nicholls

Hannah Kieschnick

PUBLIC JUSTICE

1620 L Street NW

Suite 630

Washington, DC 200386

Hannah Kieschnick

PUBLIC JUSTICE

474 14 St., Suite 610

Oakland, CA 94612

Mickey H. Osterreicher

General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

FINNERTY OSTERREICHER

& ABDULLA

70 Niagara Street

Buffalo, NY 14202

August 20, 2024

14

Respectfully submitted,

James A. Hemphill

Counsel of Record

GRAVES, DOUGHERTY,

HEARON & Moopy, P.C.

401 Congress Avenue

Suite 2700

Austin, Texas 78701

(512) 480-5762

jhemphill@gdhm.com

Alicia Wagner Calzada

Deputy General Counsel

NATIONAL PRESS

PHOTOGRAPHERS

ASSOCIATION

ALICIA WAGNER CALZADA,

PLLC

926 Chulie Drive

Suite 16

San Antonio, TX 78216

David A. Schulz

Tobin Raju

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511