News Media Organizations Argue that Drone Journalism Is First Amendment Right

Posted by Betsy Lillian on May 07, 2014 No Comments
Categories : Policy & Regulations

Law firm Holland & Knight LLP has filed a brief on behalf of 14 news media entities before the National Transportation Safety Board (NTSB) supporting Raphael Pirker in his case against the Federal Aviation Administration (FAA).

In October 2011, Pirker was paid to fly an unmanned aerial system (UAS) over the University of Virginia's campus to record videos and take photographs. The FAA became aware of the operation and subsequently levied a $10,000 civil penalty against Pirker in April 2012.

On March 6, an administrative law judge dismissed the fine, ruling that the FAA's ban on the commercial use of UAS was unenforceable because the agency had failed to adopt it through appropriate procedures. The FAA is appealing the judgment to the full NTSB board, which stays the ruling until a decision is reached.

According to Holland & Knight, the news media coalition's brief argues that the administrative judge's ruling was correct. In addition, the brief contends that the NTSB and FAA should take into account the public's First Amendment right to receive news and information and news media's right to gather news in any consideration of drone regulation.

In the brief, the news media organizations specifically assert the following:

– Drone journalism should not be considered a commercial use because newsgathering is a First Amendment-protected activity;

– The public benefit from enhanced aerial newsgathering also weighs in favor of carefully crafted and restrained government regulation;

– Privacy concerns are adequately addressed by existing state laws and should not dominate the discussion at the federal level; and

– The FAA should engage in appropriate notice-and-comment rulemaking before regulating the technology, with opportunity for the news media to express the public's interest.

‘From news reports on agriculture to tornadoes to environmental degradation, new UAS technologies can safely provide the public with valuable information from entirely new perspectives,’ comments Charles D. Tobin, chair of Holland & Knight's national media practice team and a partner in the firm's Washington, D.C., office. ‘As it weighs safety concerns, the government must consider the First Amendment interest in the free flow of information through aerial newsgathering. The news media should be seated at the table as the government drafts new regulations.’

Tobin, along with Holland & Knight lawyers Gary L. Halbert, who is the former general counsel for the NTSB, and Christine N. Walz, wrote the brief submitted to the NTSB. A copy is available here.

In addition, Holland & Knight has formed a drone practice team devoted to advising clients regarding compliance with existing federal regulations and the evolving public policy environment on UAS.

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