Fifth Circuit Shoots Down First Amendment And Preemption Arguments Against Texas Drone Laws

The Fifth Circuit's recent decision in National Press Photographers Association v. McCraw threatens to dilute the First Amendment rights of photographers and filmmakers using uncrewed aircraft systems (UAS), and undermine federal control of the airspace. The court's holdings on both the First Amendment and preemption are troubling, and undoubtedly will have an impact on UAS operations in Texas; they may also provide momentum for similar regulatory barriers in other states. The Fifth Circuit's misreading of the Federal Aviation Administration's (FAA) new fact sheet is especially problematic and is indicative of how other reviewing courts may misinterpret the document moving forward. Nevertheless, the decision leaves room for new legal challenges down the line, including as-applied First Amendment challenges and conflict preemption claims.