ACLU, ACLU of D.C., and National Press Photographers Association Tell Court that Blocking Drone Photography of DHS Operations Violates First Amendment
In Friend-of-the-Court Brief, Free Speech Groups Urge Court to Block Airspace Restrictions Affecting Journalists
WASHINGTON – Today, the American Civil Liberties Union (ACLU), the ACLU of D.C., and the National Press Photographers Association filed an amicus brief in support of a Minnesota photojournalist’s lawsuit challenging the Federal Aviation Administration's (FAA) Temporary Flight Restrictions (TFR). Earlier this year, as ICE was carrying out brutal immigration raids across the country, the FAA dramatically expanded restrictions on drone flights, banning such flights over any Department of Homeland Security (DHS) facility or “mobile asset,” which included any DHS vehicle.
As the amicus explains, the TFR made it functionally impossible for journalists to use drones to gather news in any area where immigration enforcement agents were deployed, violating the First Amendment right to record public officials performing their duties in public.
“The FAA’s restriction forced journalists reporting on immigration enforcement activity to ground their drones or risk criminal charges. This choice is unacceptable, unconstitutional, and runs roughshod over the First Amendment right to gather news,” said Scarlet Kim, senior staff attorney with ACLU’s Speech, Privacy, and Technology Project.
The brief explains that the FAA’s restriction was not about public safety or national security. Journalists were previously already advised and generally adhered to avoiding airspace around sensitive locations, such as active military bases, airports, and aircraft carriers. Moreover, press drones weren’t interfering with official activity or putting anyone at risk by capturing immigration enforcement activity unfolding in public.
"Under Trump, even the Federal Aviation Administration has become a political censor,” said Arthur Spitzer, senior counsel at ACLU-D.C. “The agency should be protecting the safety of the flying public, not protecting ICE from unfavorable news coverage.”
The brief further explains that journalists were effectively being censored beyond their DHS coverage, since the unpredictability of where any DHS vehicle may be traveling made it functionally impossible for journalists to use drones for any newsgathering in areas where immigration enforcement agents were deployed without putting themselves at risk of severe legal and financial penalties.
“Drones have become essential, safe, and economical tools for documenting government activity and other matters of public concern. By creating an unpredictable moving exclusion zone around DHS assets, the FAA forced visual journalists to choose between abandoning lawful newsgathering and risking severe penalties,” said Mickey H. Osterreicher, general counsel for the National Press Photographers Association. “Safety restrictions must be narrowly tailored and consistent with the First Amendment, especially when they limit the public’s ability to observe government officials performing their duties.”