The Federal Aviation Administration's policy regarding small unmanned aircraft systems violates the First Amendment, according to an amicus brief filed today by a coalition of 14 American media corporations and journalism organizations.
This court brief argues that the aviation authority's de facto drone ban makes no distinction between commercial and First Amendment use, which endangers the rights of drone journalists. Parties in the brief include Advance Publications, Associated Press, Cox Media Group, Gannett, Gray Television, Heart Corporation, McClatchy Company, National Press Photographers Association, National Press Club, New York Times Company, the Reporters Committee for Freedom of the Press, Radio-Television Digital News Association, Scripps Media, Sinclair Broadcast Group, Tribune Company, and WP Company.
"In applying agency posture in the guise of regulatory rule, the FAA has never distinguished between "business operations" and the use of UAS technology for the First Amendment-protected purpose of gathering and disseminating news and information," the coalition wrote in the brief, which supports Ralphael Pirker, the only person who has been fined for small drone use in the United States.
"Indeed, just last month, the FAA indicated that a newspaper's mere posting on the Internet of photographs provided to it by a non-commercial UAS hobbyist might subject the media company to federal regulatory fines for using a UAS for 'business purposes.'"
Among other Supreme Court decisions, the coalition cited Branzburg v. Hayes, in which the court ruled that "without some protection for seeking out the news, freedom of the press could be eviscerated."
The manner in which FAA regulates drones solely using cease-and-desist letters is an "inappropriate substitute" for the standard rule-making practice in the US, the agencies also claimed in the brief. Additionally, the group urges "restrained regulatory rulings" that to not infringe on the freedom of journalists to collect and disseminate information.
In a press release, Mickey Osterreicher, General Counsel for the NPPA, said “With the advent of smaller and more advanced aerial platforms which are simple to operate and inexpensive to purchase, it is logical that innovative visual journalists [would] seek to report the news by using these devices to capture images with which to better inform the public."
This brief is the strongest indictment to date of current drone regulation in the US, with regard to First Amendment rights. Sean Lawson, assistant professor in the Department of Communication at the University of Utah, in early April wrote a blog post for Forbes in which he questioned the FAA for warning the Dayton Business Journal against using drone-gathered footage and images.
"[T]elling a news organization that they should not publish content obtained by someone else is a classic prior restraint on speech and is unconstitutional," he wrote.
Below is a PDF of the brief.