The New York Times, Associated Press, Tribune Corporation, McClatchy, Hearst, Washington Post, and a host of other media companies formally suggested Tuesday that the use of drones in to collect news should be a fully protected First Amendment right.
The group of 15 major media companies filed an amicus brief in federal court in support of drone pilot Raphael Pirker, who became the first drone pilot to fight and beat the Federal Aviation Administration after the agency tried to fine him $10,000 for reckless flight of an aircraft.
Pirker originally won the National Transportation Safety Board decision, but the FAA has appealed the decision. The group of media companies, through three lawyers at Holland & Knight law firm, filed the brief to urge the NTSB to uphold its original decision.
“As a constitutionally protected activity, unquestionably the use of UAS for news gathering should receive greater protections than those afforded to hobbyists and commercial users,” the brief states. “The NTSB's ruling in this case should acknowledge this First Amendment interest as an example of the harm created by the FAA's unauthorized regulation.”
The federal government has deprived its citizens and a free and independent news media of the opportunity to participate in the rulemaking process required under U.S. law when the government seeks to regulate, restrict, or curtail otherwise proper lawful activity. The federal government, through the FAA and with the NTSB's encouragement, should move forward with the development of polices that protect, rather than hinder, freedom of speech and of the press.
The crux of that case, and of all drone regulation in the United States at the moment, comes down to the fact that the FAA never formally created a regulation that bans drone flights. Instead, it has relied on an “advisory statement” that suggests that commercial drone flights are illegal, without the regulation to back it up. Normally, any proposed rule for drone flights would be submitted for public comment—the media groups said that in forgoing that step, they have been unfairly left out of the process.
“The FAA has failed entirely to take the First Amendment into account in regulating the use of UAS.”
"The FAA, in a series of threats of administrative sanction, and in derogation of the First Amendment rights of the public to receive news and information, has flatly banned the use of UAS for newsgathering purposes," reads the brief. "The FAA will not approve licenses for UAS use for news operations. It has threatened fines against university-conducted student experimentation with drone journalism. And it has even suggested that a newspaper ‘err on the side of caution’—a chilling warning of impending punishment—and refrain from lawfully publishing photographs taken independently by a UAS hobbyist and provided after the fact to the newspaper."
"In each case, the FAA has averred to its restrictions on the use of UAS for 'business purposes,'” the brief continues. “The FAA has failed entirely to take [the] First Amendment into account in regulating the use of UAS.”
The brief argues that the use of drones for news gathering purposes is a public service, not a commercial use, and so journalists should be exempt from its “commercial” ban, regardless of whether the agency went through the proper channels in making the ban (it didn’t).
Meanwhile, some journalists have started using drones to document the news—in Connecticut, a TV-station producer flew a drone over the aftermath of a car accident. The FAA has said it’s looking into the issue. Last week, a storm chaser in Arkansas used a drone to document a tornado in the state—the FAA similarly said that it’s “looking into” the issue. The FAA has also grounded drone journalism programs at the University of Missouri and the University of Nebraska.
The brief goes on to say that drones can be used to improve journalism and that the public stands to benefit from newsrooms that have a cheaper, safer way of covering stories from the air.
"The FAA should develop a rule to regulate small UAS, using appropriate notice-and-comment procedures to provide the news media with input into the development of UAS regulations that will provide carefully tailored safety restraints and maximum First Amendment freedom to lawfully gather news," it said.
"The public stands to benefit enormously from the news media's use of UAS, as many news stories are told best from an aerial perspective," it continued. "For example, reports on traffic, hurricanes, wildfires, and crop yields could all be told more safely and cost-effectively with the use of UAS. Lower-cost aerial photography would help more newsrooms across the country bring more accurate and useful information to the public.