United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED January 10, 2024 No. 22-50337 Lyle W. Cayce ____________ Clerk

National Press Photographers Association; Texas Press Association; Joseph Pappalardo,

Plaintiffs—Appellees/Cross-Appellants,

versus

Steven McCraw, in his official capacity as Director of the Texas Department of Public Safety; Dwight Mathis, in his official capacity as Chief of the Texas Highway Patrol; Kelly Higgins, in his official capacity as District Attorney of Hays County, Texas,

Defendants—Appellants/Cross-Appellees. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CV-946 ______________________________

Before Clement, Elrod, and Willett, Circuit Judges. Don R. Willett, Circuit Judge: Our prior panel opinion, National Press Photographers Association v. McCraw, 84 F.4th 632 (5th Cir. 2023), is WITHDRAWN and the following opinion is SUBSTITUTED therefor: Chapter 423 of the Texas Government Code governs the operation of unmanned aerial vehicles—drones—in Texas airspace. In this case, the Case: 22-50337 Document: 00517028123 Page: 2 Date Filed: 01/10/2024

No. 22-50337

plaintiffs claim a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent. They also assert a constitutional right to fly drones at low altitudes over critical infrastructure facilities like prisons and large sports venues. We disagree. Though we do not foreclose any as-applied constitutional defenses to any hypothetical future prosecutions under the drone laws, we hold that these facial challenges fail. Accordingly, we REVERSE and REMAND with instructions to enter judgment in the defendants’ favor on the constitutional claims. We also reject the plaintiffs’ cross-appeal claiming that federal aviation law preempts state drone regulation. Quite the contrary, federal law expressly contemplates concurrent non-federal regulation of drones, especially where privacy and critical infrastructure are concerned. On this issue, we AFFIRM the district court’s dismissal of the plaintiffs’ preemption claims. I A Roughly a decade ago, the Texas Legislature enacted Chapter 423 as part of its efforts to regulate the use of drones in Texas airspace.1 Two sets of Chapter 423’s provisions are at issue in this lawsuit: First, we have what the parties have nicknamed the “Surveillance” provisions. These provisions make it unlawful to use a drone to “capture an image” of someone or private property with an intent to surveil the subject of the image: A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned

1 Texas Privacy Act, 83d Leg., R.S., ch. 1390, §§ 1–2 (2013), 2013 Tex. Gen. Laws 3691, 3691–3694 (codified at Tex. Gov’t Code §§ 423.001–423.008).

2 Case: 22-50337 Document: 00517028123 Page: 3 Date Filed: 01/10/2024