Who would have predicted that a First Amendment amicus brief on behalf of national news organizations would be filed at the National Transportation Safety Board (NTSB)?
News Media filed the brief a few days ago in support of drone filmmaker Raphael Pirker. Pirker flew a drone, made a video, distributed it, and was fined by the FAA. In response, Pirker challenged whether the FAA’s notice banning the commercial use of even small drones meets the criteria for valid rulemaking. An ALJ invalidated Pirker’s fine, and the NSTB is currently reviewing the decision. This is an administrative law case about rulemaking and FAA definitions. But the News Media brief shows that as the FAA, Congress, and states decide how to regulate drone use, First Amendment concerns will inevitably be raised.
Drone regulation implicates the First Amendment because drones carry recording devices. A number of courts have recognized a limited First Amendment right to record, although it’s important to also note that some courts have not. As drone regulations are enacted, courts will need to figure out how broadly the right to record extends, and which government regulations do and don’t implicate it.
The News Media amicus brief takes a slightly different approach. It urges the NTSB to “safeguard the public’s First Amendment interest in the free flow of information.” A number of cases, most notably Branzburg v. Hayes, speak to the importance of protecting newsgathering. Newsgathering protection is really protection of free speech infrastructure. Protecting speech without protecting free speech infrastructure could result in government use of other regulatory tools like taxes or roadblocks to shut down speech as effectively as censorship.
Unfortunately, the News Media brief overstates its case. The NTSB should certainly consider the First Amendment implications of FAA rules. But the FAA’s general ban on commercial drone use is just that: a general ban. The brief recognizes that the FAA’s “de facto policy” is the “almost complete prohibition on the civilian use of UAS for any purpose, including First Amendment purposes.” By this argument, the government isn’t targeting the press; it’s including them with everybody else.
Generally applicable regulations, such as labor laws, can be applied to the press. “The publisher of a newspaper has no special immunity from the application of general laws.” (AP v. NLRB) But if the government uses such laws to specifically target free speech infrastructure, ie with press-specific taxes, that targeting violates the First Amendment (Grosjean v. AP). The News Media brief suggests that the press deserve an exception from a generally applicable rule, not that the FAA has impermissibly targeted the press.
The centrality of “the press” in this argument also should give pause. The brief teems with press exceptionalism. It asks the NTSB to consider the First Amendment newsgathering rights of “professional news organizations” (at 9) and “accredited news media” (at 10). We all know this is not the way news is gathered now. It’s not even how drone journalism has worked. Many newsworthy drone videos have been crafted by hobbyists (at 13). But the brief argues that “the use of UAS for newsgathering should receive greater protections than those afforded to hobbyists and commercial users,” against the backdrop that the brief understands “newsgathering” to be newsgathering by professional organizations (at 12). This just won’t (pardon the expression) fly. Sometimes the government creates special exceptions for the institutional press (at 10-11), but institutional press access is often established in situations where the government just can’t let everyone in. FAA regulation of drones isn’t quite the same. In some scenarios, the government can’t let everyone in at once for safety reasons, but in others, that limitation won’t be at play. Encouraging the FAA to carve out exceptions for professional newsgatherers and not for hobbyists potentially creates rather than solves a First Amendment problem. It could discriminate between actors, and likely discriminate between viewpoints.
The problems in the brief don’t mean that the First Amendment has no role to play here. The two most interesting questions raised by the brief are as follows: should the FAA be able to fine newspapers that distribute drone hobbyist footage? (at 21) And might the FAA’s decisionmaking be an example of impermissibly ad hoc and opaque delegation? (at 23)
The first question- whether the FAA can fine newspapers that distribute hobbyist footage- strikes at the challenging core of Bartnicki v. Vopper. A broad reading of Bartnicki is that government regulations of the distribution of information are subject to strict scrutiny and thus likely will be struck down by the First Amendment (see also Stevens). A narrower reading is that the government cannot regulate the distribution of information of public interest (vs private info), as long as the publisher took no part in the illegal obtaining of that information. The fact pattern suggested here- a newspaper publishing information legally obtained by a hobbyist under the FAA’s model aircraft exception- could force a reexamination of what Bartnicki means by “obtained lawfully”. The hobbyist’s making of the video is not itself unlawful, but it’s unlawful to fly a drone for business purposes, so the newspaper’s participation in distributing the video arguably makes both that distribution and the initial drone flight unlawful. It’s a mess.
The question of whether the FAA’s decisionmaking process is impermissibly ad hoc, opaque, and subjective is similarly fascinating. Opaque, ad hoc, and subjective policymaking has been found to violate the First Amendment because it leaves too much discretion, and thus room for discrimination, in the hands of local authorities (the brief cites the Ninth Circuit case Foti v. City of Menlo Park). The FAA’s ban on commercial drone use doesn’t seem to raise this issue, since the FAA bans everyone. But the FAA’s drone licensing process for universities might raise this concern (huge caveat: I don’t know that much about it). Or if Congress or the FAA were to put in place a broader drone licensing system, it would have to make sure that FAA officials aren’t giving licenses based on the content or viewpoints of particular organizations.