The Federal Aviation Administration has promulgated ad hoc rules and regulations which may face Constitutional scrutiny due to the possible restriction on the First Amendment freedom of speech and freedom of the press. Formal regulations were due last year but have not yet been released. The FAA justifies its restrictions on the use of unmanned aerial systems (aka drones) by journalists in their news gathering by arguing drones cannot be used for business purposes. However, as stated in the News Media Brief Amici filed with the National Transportation Safety Board, “News gathering is not a ‘business purpose’; it is a First Amendment right.” The Supreme Court has repeatedly ruled that the First Amendment protects the gathering and distribution of news and information regardless as to whether someone pays for the news or it is freely given. Additionally, the Supreme Court has held any restrictions on licensing and permitting schemes must be “narrowly drawn, reasonable and definite” in order to pass Constitutional muster.
Journalists, news media groups, as well as colleges and universities teaching “drone journalism” classes will likely continue to challenge the restrictions on drone usage. The use of drones has proved useful in myriad ways including: capturing news from angles which a photographer on the ground cannot photograph; protecting news helicopter pilots from flying into a dangerous area by employing a drone instead; and saving money by using a drone rather than manned aircraft for news coverage. These challenges will be determined on a case-by-case basis. As our clients include global broadcasting, publishing and digital media companies, the issues facing their employees and their First Amendment rights may very well result in litigation on a case of first impression. The Cruser & Mitchell Drone Team is ready to face the challenge.