Ban on drone photos harms free speech, say media outlets in challenge to FAA

The New York Times(s nyt) and other major media outlets have accused the Federal Aviation Administration of “chilling” journalism and violating their First Amendment rights by banning the use of unmanned aircraft for news photography.

The media outlets made the claims in a “friend of the court” brief (see below) filed Tuesday in support of Raphael Pirker, a drone hobbyist who was fined $10,000 by the FAA for using a five-pound drone to make a promotional video over the University of Virginia.

A judge dismissed the fine, agreeing that the FAA did not have the authority to impose it, but now the agency is appealing the decision and, at the same time, has been warning media outlets and others not to use unmanned aircraft for photography.

The media companies responded with the legal filing, which complains that the FAA is wrong to classify news footage obtained by drone as a “business” subject to FAA regulation, and says the agency’s ad hoc measures — including banning a drone photography at two journalism schools — are arbitrary and illegal.

The media outlets also point out that drone photography provides a cost-effective way to report on important public issues like forest fires, traffic jams, weather and crop yields, and that the FAA ban is chilling their ability to do so.

In supporting Pirker, the dozen or so media companies, which also include the AP and the Washington Post, argue that the FAA should recognize drones as a new form of traditional news gathering:

The FAA’s position is untenable as it rests on a fundamental misunderstanding about journalism. News gathering is not a “business purpose”: It is a First Amendment right. […]  Our laws have always been flexible enough to incorporate new technologies—from the printing press, to cameras, to radio, to television, to the Internet —without banning them and while still protecting basic rights and freedoms.  (emphasis mine)

The filing comes at a time that governments are scrambling to respond to an explosion in the popularity of consumer drones, which weigh three to five pounds and let hobbyists take stunning photos. (See these news photos of an explosion in Harlem or my colleague Signe Brewster’s aerial tour of San Francisco).

In the absence of clear rules, agencies have responded with outright bans, including the National Park Service’s decision last week to declare all drones in Yosemite to be illegal.

“The bigger picture is that the interest in the technology has far outpaced the rule-making process of various agencies,” said Brendan Schulman, a drone attorney who is representing Pirker. “The laws are over-reaching and and don’t give credit to the beneficial aspects of technology.”

Schulman is in the process of filing a response to the FAA’s appeal, which is being lodged before a full panel of the National Transportation Safety Board. The board has yet to say if it will hold a hearing for the appeal, and the final outcome can in turn be appealed to the U.S. Court of Appeals for the D.C. Circuit.

It remains unclear if the FAA has authority over consumer drones outside of airports and commercial flyways (see our explainer which suggests anything under 400 feet is fair game), although states and cities can currently apply privacy and public order laws.

You can read the media outlet’s brief here (I’ve underlined some of the key parts) :

NYT Et Al Amicus for Drones

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An earlier version of this story incorrectly stated that an appeal in the NTSB ruling lies with a District Court; the appeal is to the Court of Appeals for the District of Columbia.