No Suit About No Fly – UPDATED

After resolving threshold matters about justiciability, the Fifth Circuit rejected facial First Amendment challenges to Texas laws about the use of drones in Nat’l Press Photographers Ass’n v. McCraw, as follows:

• “No-Fly” provisions. “Plaintiffs’ First Amendment challenge to the No-Fly provisions falters because ‘only conduct that is “inherently expressive” is entitled to First Amendment protection.’ The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions.” (footnotes omitted, emphasis in original).
• “Surveillance” provisions (which prohibit the use of a drone to capture images “with the intent to conduct surveillance ….”). “Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others because they are small, silent, and able to capture images from angles and altitudes no ordinary photographer, snoop, or voyeur would be able to reach. … The law is also tailored to bar only surveillance
  that could not be achieved through ordinary means …. We therefore conclude that the law survives intermediate scrutiny.”

No. 22-50337 (Oct. 23, 2023). The opinion was later revised.