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Is Drone Journalism a Constitutional Right?

By May 7, 2014 2 Comments

Recently, a judge with the National Transportation Safety Board (NTSB) ruled that there are no laws against flying a drone commercially and that Raphael “Trappy” Pirker would no longer have to pay a $10,000 fine administered by the Federal Aviation Administration (FAA) for flying a drone in what they characterized as “careless and reckless behavior.” The judge’s reasoning was that the FAA has never undertaken the required public notice or even made an official regulation about the commercial use of drones. Obviously, this didn’t sit well with the FAA who is back in court appealing the decision against Pirker and demanding the NTSB reconsider its position.

Pirker is not alone in his belief that he did nothing wrong when he flew a drone over the University of Virginia campus in 2011 to obtain aerial photos and videos for marketing firm Lewis Communications. Yesterday, several media companies including The New York Times, Associated Press, Tribune Corporation, and 12 others filed an amicus curiae where they came to the defense of Pirker. In the brief, they not only insist Pirker is innocent, but they also state that the use of drones to collect information for news gathering purposes should be protected by the First Amendment.

According to the document:

“Since 2007, the Federal Aviation Administration, through ad hoc administrative actions rather than through properly enacted and promulgated federal regulation, has applied an overly broad policy prohibiting the unlicensed use of unmanned aerial systems (UAS) for “business purposes” in the United States national airspace. In applying agency posture in the guise of regulatory rule, the FAA has never distinguished between “business operations” and the use of UAS technology for the First Amendment-protected purpose of gathering and disseminating news and information.”

Just last month, the FAA issued a statement that declared a media company would be subject to federal regulatory fines if they used photographs or videos provided by a non-commercial UAS hobbyist. But, if the primary focus of news reporting is not to make money, can it be considered a “business?” Brian Emfinger doesn’t think so.

Emfinger is a “drone journalist” who just last week flew a drone to document the aftermath of a tornado in Arkansas. The storm left a path of destruction as its 150 miles-per-hour winds ripped through the city of Mayflower killing fourteen people. While the conditions were far too dangerous for helicopter pilots, Emfinger was able to maneuver his drone through the harsh winds and capture stunning video footage that would have otherwise gone unseen.

Emfinger’s drone footage was aired on television and allowed people to see the catastrophic damage for themselves. There is no doubt that this is a valuable public service, but the FAA is still investigating the matter and will most likely fine Emfinger the same way they fined Pirker. When asked about the use of a drone for television coverage of the tornado, FAA spokesman Lynn Lunsford said, “We are looking into it.”

If we have the technology and ability to use drones for newsgathering and reporting services, why is the FAA so adamant about fining individuals who choose to do so? Currently, the FAA says a person does not need approval to fly a drone for recreational purposes as long as they operate the drone below 400 feet. But, this same individual would be subject to a $10,000 fine if they choose to make money by doing so. Does this make sense? Should the use of drones for the purpose of journalism be protected by the First Amendment?

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Ivan Barajas

Author Ivan Barajas

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Join the discussion 2 Comments

  • pablo says:

    skeet practice

  • rollinshultz says:

    The FAA cannot be permitted to outlaw drones, however as drones become prolific, we will definitely need some safety regulations regarding size and weight etc and some assurances they will not fall out of the sky like rocks, but like feathers.
    We can have the technology and our liberties, but we must be vigilant or we will lose both.

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