United States Court of Appeals

for the Fifth Circuit

____________

No. 22-50337

____________

National Press Photographers Association; Texas 

Press Association; Joseph Pappalardo, 

Plaintiffs—Appellees/Cross-Appellants,

versus

Steven McCraw, in his official capacity as Director of the Texas 

Department of Public Safety; Dwight Mathis, in his official capacity as 

Chief of the Texas Highway Patrol; Kelly Higgins, in his official capacity 

as District Attorney of Hays County, Texas, 

Defendants—Appellants/Cross-Appellees.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:19-CV-946

______________________________

Before Clement, Elrod, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

Our prior panel opinion, National Press Photographers Association v. 

McCraw, 84 F.4th 632 (5th Cir. 2023), is WITHDRAWN and the following 

opinion is SUBSTITUTED therefor:

Chapter 423 of the Texas Government Code governs the operation of 

unmanned aerial vehicles—drones—in Texas airspace. In this case, the 

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2024

Lyle W. Cayce

Clerk

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plaintiffs claim a sweeping First Amendment right to use unmanned aerial 

drones to film private individuals and property without their consent. They 

also assert a constitutional right to fly drones at low altitudes over critical 

infrastructure facilities like prisons and large sports venues.

We disagree. Though we do not foreclose any as-applied constitutional 

defenses to any hypothetical future prosecutions under the drone laws, we 

hold that these facial challenges fail. Accordingly, we REVERSE and 

REMAND with instructions to enter judgment in the defendants’ favor on 

the constitutional claims. We also reject the plaintiffs’ cross-appeal claiming 

that federal aviation law preempts state drone regulation. Quite the contrary, 

federal law expressly contemplates concurrent non-federal regulation of 

drones, especially where privacy and critical infrastructure are concerned. 

On this issue, we AFFIRM the district court’s dismissal of the plaintiffs’ 

preemption claims.

I

A

Roughly a decade ago, the Texas Legislature enacted Chapter 423 as 

part of its efforts to regulate the use of drones in Texas airspace.1 Two sets of 

Chapter 423’s provisions are at issue in this lawsuit:

First, we have what the parties have nicknamed the “Surveillance” 

provisions. These provisions make it unlawful to use a drone to “capture an 

image” of someone or private property with an intent to surveil the subject 

of the image:

A person commits an offense if the person uses an unmanned 

aircraft to capture an image of an individual or privately owned 

1 Texas Privacy Act, 83d Leg., R.S., ch. 1390, §§ 1–2 (2013), 2013 Tex. Gen. 

Laws 3691, 3691–3694 (codified at Tex. Gov’t Code §§ 423.001–423.008).

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real property in this state with the intent to conduct 

surveillance on the individual or property captured in the 

image.2

Depending on how you count them, there are at least twenty-one statutory 

exemptions to the Surveillance Provisions.3 For instance, law enforcement 

and the military are allowed to conduct aerial surveillance using drones.4 So 

can professors and students, if they do it for an “academic purpose.”5It’s 

also fine to use a drone to capture images from under eight feet—roughly the 

height of someone holding a camera above his or her head.6Importantly—it 

is lawful to use a drone to capture images of public property or persons on 

public property,7 and one can always take drone images with the consent of 

the subject.8 What is not among the twenty-one exceptions, however, is a 

specific exemption for the press.

Second, we have what the parties have dubbed the “No-Fly 

Provisions.” The No-Fly provisions make it illegal to fly a drone above 

sensitive sites like critical infrastructure facilities, prisons, and large sports 

venues:

A person commits an offense if the person intentionally or 

knowingly:

2 Tex. Gov’t Code § 423.003(a).

3

Id. § 423.002(a)(1)–(21).

4

Id. §§ 423.002(a)(3) & (8).

5

Id. § 423.002(a)(1).

6

Id. § 423.002(a)(14).

7

Id. § 423.002(a)(15).

8

Id. § 423.002(a)(6).

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(1) operates an unmanned aircraft over a critical infrastructure 

facility and the unmanned aircraft is not higher than 400 feet 

above ground level;

(2) allows an unmanned aircraft to make contact with a critical 

infrastructure facility, including any person or object on the 

premises of or within the facility; or

(3) allows an unmanned aircraft to come within a distance of a 

critical infrastructure facility that is close enough to interfere 

with the operations of or cause a disturbance to the facility.9

Critical infrastructure facilities include airports, petroleum refineries, power 

generators, and military installations, so long as they are enclosed by a fence 

or barrier, or otherwise indicate that entry is forbidden.10 There is a nearly 

identical No-Fly provision barring flights directly above correctional facilities 

and detention centers,11 and one that applies to large sports venues:

A person commits an offense if the person intentionally or 

knowingly operates an unmanned aircraft over a sports venue 

and the unmanned aircraft is not higher than 400 feet above 

ground level.12

Just like the Surveillance provisions, the No-Fly provisions contain several 

exemptions. Most relevant here is one that allows a drone operator to violate 

the No-Fly provisions “for a commercial purpose” so long as the operator 

9

Id. § 423.0045(b).

10 Id. § 423.0045(a)(1-a).

11 Tex. Penal Code § 38.115(b). The No-Fly provisions relating to correctional 

facilities and detention centers previously were codified in the same section of the Texas 

Government Code as the No-Fly provisions relating to critical infrastructure sites. Tex. 

Gov’t Code § 423.0045. Effective September 1, 2023, however, the Texas Legislature 

moved those provisions to the Penal Code. See Operation of an Unmanned Aircraft Over a 

Correctional Facility or Detention Facility; Creating a Criminal Offense, 2023 Tex. Sess. Law 

Serv. Ch. 591 (H.B. 3075).

12 Tex. Gov’t Code § 423.0046(b).

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complies with the applicable Federal Aviation Administration rules and 

authorizations.13 Again, though: there is no specific exemption for the press.

Violating the Surveillance or the No-Fly provisions is a criminal 

offense under Texas law,14 and it also subjects the violator to the possibility 

of civil liability.15

B

The plaintiffs in this case are one drone-owning journalist and two 

media-related organizations (Plaintiffs).

Joseph Pappalardo is a self-employed journalist. He owns a small 

aerial drone and is qualified to operate the drone in the national airspace. He 

is “concerned that using a [drone] for journalistic purposes would put [him] 

at risk of criminal penalties and subject [him] to liability in a civil lawsuit” in 

Texas. In 2017, he was informed by one of his “corporate bosses” at the time 

that, should he take images in violation of Chapter 423, the company would 

not pay for a legal defense in any resulting court proceedings. After that 

conversation, he has refrained from using a drone for image capturing in 

Texas “due to [his] concern about possibly violating Chapter 423.” As a 

result, he has missed out on opportunities to take aerial photographs to 

include in his reporting, including stories on Hurricane Harvey, house fires, 

storm damage, removal of homeless encampments, and illegal poaching in 

urban areas. He believes that Chapter 423 prevents him from being able to do 

“complete reporting that journalists in other states are able to do.” “As a 

13 Id. §§ 423.0045(c)(5), 423.0046(c)(5). As of September 1, 2023, the provisions 

relating to correctional facilities and detention centers no longer appear to have a 

commercial-purpose exception. See Tex. Penal Code § 38.115(c).

14 Tex. Gov’t Code §§ 423.003(b), 423.0045(d), 423.0046(d); Tex. Penal 

Code § 38.115(d).

15 Tex. Gov’t Code § 423.006(a).

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freelancer, being able to provide aerial imagery can be the difference between 

selling a pitch or being denied.” 

National Press Photographers Association (NPPA) is a national 

association that represents the interests of visual journalists, including news 

photographers in Texas. According to NPPA, drones provide its members 

with a cheap and safe alternative to renting a helicopter to obtain aerial 

images. Two NPPA members, both photojournalists, are especially relevant 

to this appeal.

The first is Guillermo Calzada. In July 2018, he flew his drone near 

the site of an apartment fire in San Marcos, Texas, to capture images for his 

employer, the San Antonio Express-News. An unnamed federal agent at the 

scene approached him and told him that he was interfering with a federal 

investigation. The agent then called the San Marcos police. An unnamed 

police officer arrived and told Calzada that he had violated state law by taking 

pictures with his drone and that, if he published them, he would be violating 

the law again. The officer also told Calzada that she wouldn’t cite him for the 

incident. 

The second is Brandon Wade. He is a freelancer who, though qualified 

to fly a drone, does not use one for journalism due to the risk of enforcement. 

He believes the threat of enforcement is costing him “thousands of dollars”

because one of his clients, The Dallas Morning News, has not given him any 

drone-photography assignments. In 2018, another client, the Fort Worth 

Star-Telegram, offered Wade an assignment to document the construction of 

a new ballpark for the Texas Rangers. Although the Rangers refused to grant 

permission to Wade’s client, the Rangers did hire Wade to film the 

construction for them for public-relations purposes. As a result, Wade says, 

the Rangers own the copyright to the footage, and he cannot share it with the 

media. Wade “lost thousands of dollars” due to the Rangers’ refusal. 

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The other organizational plaintiff is the Texas Press Association 

(TPA). It exists to promote the welfare of Texas newspapers, encourage 

higher standards of journalism, and advocate for First Amendment liberties. 

TPA represents approximately 400 member newspapers, and its members 

include The Dallas Morning News, the San Antonio Express-News, and the Fort 

Worth Star-Telegram. Some of TPA’s member newspapers have enacted 

policies avoiding the use of drone photography in response to Chapter 423’s 

restrictions. Its members would be able to more cheaply and safely cover the 

news if drone photography were permitted.

The defendants in this case are high-ranking state- and county-level 

officials: two Texas heads of law-enforcement agencies and one county 

district attorney (Defendants).

Steve McCraw is the Director of the Texas Department of Public 

Safety (DPS). As the “head of the Department of Public Safety,” he is “the 

highest law enforcement official in the state of Texas.”16 The other state 

official is Dwight Mathis. He is the Chief of the Texas Highway Patrol 

(THP).17 The record evidence indicates that, while DPS has issued warnings 

and citations to drone operators on a few occasions, neither DPS nor THP 

has ever arrested anybody for violating Chapter 423 specifically.

Kelly Higgins is the district attorney of Hays County, Texas.18 Unlike 

the state defendants, the Hays County district attorney’s office has initiated 

at least one prosecution “for drone-related activities” The record evidence 

indicates that this prosecution, which resulted in a deferred disposition, was 

16 Westfall v. Miller, 77 F.3d 868, 873 n.1 (5th Cir. 1996).

17 Ron Joy previously was Chief of the Texas Highway Patrol and was the defendant 

named in the complaint. Mathis has been substituted in this litigation.

18 Wes Mau previously was the Hays County district attorney and the county-level 

defendant named in the complaint. Higgins has been substituted in this litigation.

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for violating Chapter 423. Though it is not in the record, at oral argument 

Higgins’s counsel indicated that the prosecution did not involve members of 

the press but instead an individual who surreptitiously photographed his 

neighbor. 

C

Plaintiffs filed this pre-enforcement facial constitutional challenge to 

Chapter 423 against Defendants, seeking to enjoin them from enforcing the 

Surveillance and No-Fly provisions. Plaintiffs asserted five claims, arguing 

that the Surveillance provisions violate the First Amendment and the Due 

Process Clause of the Fourteenth Amendment, and that the No-Fly 

provisions violate the First Amendment, Due Process, and federal 

preemption principles. In essence, their position is that Chapter 423 

unlawfully infringes on their right to film and gather news, that the statutory 

prohibitions are so vague that they violate Due Process, and that Texas has 

no authority to promulgate drone regulations because the federal government 

has expressly preempted all state and local drone regulations.

The district court ruled on all five claims. In 2020, the court dismissed 

Plaintiffs’ claim that the No-Fly provisions are preempted by federal law.19

In 2022, ruling on the parties’ cross motions for summary judgment, the 

court entered a final judgment favoring Plaintiffs on all of their remaining 

theories and enjoined Defendants and all of their subordinates from enforcing 

Chapter 423.20 The court held that both challenged provisions violate both 

the First Amendment and Due Process.

19 Nat’l Press Photographers Ass’n v. McCraw, 504 F. Supp. 3d 568, 591 (W.D. Tex. 

2020).

20 Nat’l Press Photographers Ass’n v. McCraw, 594 F. Supp. 3d 789, 813 (W.D. Tex. 

2022).

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Both sides appealed. Defendants argue that Plaintiffs’ claims fail on 

standing, sovereign immunity, and merits grounds. Plaintiffs, on the other 

hand, say the district court should have enjoined enforcement of Chapter 423 

on the additional ground that it is preempted by federal law.

II

We review summary-judgment rulings de novo, applying the same 

standard as the district court.21 “Cross-motions must be considered 

separately, as each movant bears the burden of establishing that no genuine 

issue of material fact exists and that it is entitled to judgment as a matter of 

law.”22 Legal issues, including jurisdictional issues like standing and 

sovereign immunity, are reviewed de novo.23

Our discussion proceeds as follows: (A) Article III standing; (B) the 

Ex parte Young exception to sovereign immunity; (C) the First Amendment; 

and (D) preemption under the Supremacy Clause.24

A

Defendants first argue that Plaintiffs lack standing to bring this preenforcement challenge to Chapter 423 against them. We agree—in part. 

“Article III of the Constitution limits the jurisdiction of federal courts 

to ‘Cases’ and ‘Controversies.’”25 “The basic inquiry is whether the 

conflicting contentions of the parties present a real, substantial controversy 

21 Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538 (5th Cir. 2004).

22 Id. at 538–39.

23 Texas All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022).

24 See Davis v. Sumlin, 999 F.3d 278, 279 (5th Cir. 2021) (“[F]ederal courts must 

do jurisdiction first.”).

25 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. 

Const., art. III, § 2).

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between parties having adverse legal interests, a dispute definite and 

concrete, not hypothetical or abstract.”26

To show associational standing, NPPA and TPA must show that “(a) 

its members would otherwise have standing to sue in their own right; (b) the 

interests [each entity] seeks to protect are germane to [each] organization’s 

purpose; and (c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.”27 It is undisputed 

that the second two elements are met, so the only question is the first: 

whether the individual members would have standing in their own right.

28

For the individual members and Pappalardo “[t]o have standing, 

[they] must (1) have suffered an injury in fact, (2) that is fairly traceable to 

the challenged action of the defendant, and (3) that will likely be redressed by 

a favorable decision.”29 Primarily at issue here are the injury and traceability 

elements. As the parties invoking standing, Plaintiffs “bear the burden to 

demonstrate standing for each claim they seek to press.”30

We address injury first.

1

“An injury sufficient to satisfy Article III must be concrete and 

particularized and actual or imminent, not conjectural or hypothetical. An 

26 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (alteration 

accepted) (internal quotation marks omitted).

27 Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020), as revised (Oct. 30, 

2020) (citation omitted).

28 See Speech First, 979 F.3d at 330 (citing Lujan v. Def’s of Wildlife, 504 U.S. 555, 

560–61 (1992)).

29 Id.

30 Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 209 (5th Cir. 2011).

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allegation of future injury may suffice if the threatened injury is certainly 

impending, or there is a substantial risk that the harm will occur.”31

The parties disagree on whether Plaintiffs have carried their burden 

to show an injury for standing purposes. After all, no Plaintiff has ever been 

arrested or prosecuted for violating Chapter 423. Defendants McCraw and 

Mathis produced evidence showing that they have not arrested or prosecuted 

anybody for violating Chapter 423. And while the Hays County District 

Attorney’s office prosecuted a claim under Chapter 423, that case resulted 

in a deferred disposition and did not involve any members of the press. Thus, 

Defendants say, Plaintiffs have not been injured by any enforcement of 

Chapter 423 and any future injury is purely hypothetical.

Plaintiffs lack standing to bring their Due Process claims. They have 

never been arrested or prosecuted for violating Chapter 423. And the 

available evidence suggests that Defendants have never enforced Chapter 

423 against Plaintiffs (or anybody else). The issue of whether the Surveillance 

and No-Fly provisions are unlawfully vague in their proscriptions is therefore 

a mere hypothetical dispute lacking the concreteness and imminence 

required by Article III.32 In the absence of any imminent or even credible 

threat of prosecution under Chapter 423, Plaintiffs lack standing to 

31 Susan B. Anthony List, 573 U.S. at 158 (internal quotation marks and citation 

omitted).

32 See id. at 158. We note that vagueness may be grounds for a pre-enforcement 

challenge insofar as it chills protected speech under the First Amendment. See Roark & 

Hardee LP v. City of Austin, 522 F.3d 533, 546–47 (5th Cir. 2008) (“Many times void-forvagueness challenges are successfully made when laws have the capacity to chill 

constitutionally protected conduct, especially conduct protected by the First 

Amendment.” (internal quotation marks omitted)). But as we explain later, see infra § C, 

Plaintiffs’ challenge to the No-Fly provisions do not implicate the First Amendment, so we 

need not reach this issue. 

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preemptively challenge Chapter 423 under the Due Process Clause.33 We 

therefore vacate the district court’s judgment on the Due Process claims. 

The First Amendment claims, however, are another matter. This is 

because “standing rules are relaxed for First Amendment cases so that 

citizens whose speech might otherwise be chilled by fear of sanction can 

prospectively seek relief.”34 “In pre-enforcement cases alleging a violation of 

the First Amendment’s Free Speech Clause, the Supreme Court has 

recognized that chilled speech or self-censorship is an injury sufficient to 

confer standing.”35 In this context, “[a] plaintiff has suffered an injury in fact 

if he (1) has an ‘intention to engage in a course of conduct arguably affected 

with a constitutional interest,’ (2) his intended future conduct is ‘arguably 

. . . proscribed by [the policy in question],’ and (3) ‘the threat of future 

enforcement of the [challenged policies] is substantial.’”36 Unlike in other 

constitutional contexts, in the speech context, we “may assume a substantial 

threat of future enforcement absent compelling contrary evidence.”37

“Controlling precedent thus establishes that a chilling of speech because of 

the mere existence of an allegedly vague or overbroad statute can be sufficient 

injury to support standing.”38

33 See id. at 159.

34 Justice v. Hosemann, 771 F.3d 285, 294 (5th Cir. 2014).

35 Barilla v. City of Houston, 13 F.4th 427, 431 (5th Cir. 2021).

36 Speech First, 979 F.3d at 330 (citing Susan B. Anthony List, 573 U.S. at 161–64).

37 Barilla, 13 F.4th at 433 (emphasis added).

38 Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006).

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Here, Plaintiffs have evidence that their use of drones (which they call 

“speech”39) was chilled because of Chapter 423. Pappalardo, for instance, 

violated Chapter 423 but stopped using a drone after his boss told him he 

would not be provided a legal defense for violating the law. NPPA member 

Calzada, on assignment for the San Antonio Express-News, was told by San 

Marcos police that his use of a drone in July 2018 violated state law. Calzada 

continues to violate Chapter 423 but does not do so if law enforcement is 

around. NPPA member and freelance photojournalist Wade testified that he 

“often [doesn’t] use [his] drone because of the risk of enforcement.” As a 

result, he has missed money-making opportunities with The Dallas Morning 

News and the Texas Rangers because of his (and their) unwillingness to 

violate Chapter 423. TPA member The Dallas Morning News enacted policies 

prohibiting its photographers from using drone photography. Finally, in their 

briefs, Plaintiffs represent to us that, after the district court enjoined the 

enforcement of Chapter 423 in this litigation, The Dallas Morning News 

reversed its no-drone policy, and Pappalardo and another NPPA member 

began to use drones to capture images for news purposes. 

The above facts are sufficient to show chill. Plaintiffs have restricted 

their use of drones for newsgathering purposes due to the threat of Chapter 

423’s enforcement, which would open them up to criminal and civil 

liability.40 The facts speak for themselves. We are therefore justified in our 

conclusion that a substantial threat of future enforcement exists absent 

“compelling contrary evidence.”41

39 “In analyzing standing, we assume that [Plaintiffs are] correct on the 

merits . . . .” Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 309 (5th Cir. 

2023) (citing Texas v. EEOC, 933 F.3d 433, 447 (5th Cir. 2019)).

40 See Speech First, 979 F.3d at 330.

41 Barilla, 13 F.4th at 433.

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There’s more, though. We highlight the monetary injury NPPA 

member Wade suffered due to his clients’ compliance with Chapter 423. In 

KVUE, Inc. v. Moore, we found First Amendment standing when a plaintiff 

news organization “offered evidence that it suffered actual monetary losses 

during the time it obeyed the law and that it has in fact violated the statute” 

upon the challenged law’s being enjoined.42 Here, the evidence confirms that 

photojournalists like Wade “suffer[] actual monetary losses during the time 

[they] obey[] the law,” and Plaintiffs represent that they have “violated the 

statute” upon its enjoinment.43 Our precedent thus holds that they may file 

suit to challenge Chapter 423 on First Amendment grounds.

In response, Defendants stress that they have never enforced Chapter 

423 and that Plaintiffs’ chill is therefore a subjective self-chill, detached from 

any objective likelihood of the law’s enforcement. But their argument does not 

overcome our precedent, nor does their theory match the evidence here—

photojournalists and press organizations are restricting drone photography, 

to their financial detriment, out of fear of Chapter 423. “That the statute has 

not been enforced and that there is no certainty that it will be does not 

establish the lack of a case or controversy.”44 This is particularly so when, as 

here, “the State has not disavowed any intention” of invoking the law against 

Plaintiffs.45 While Defendants’ point is well taken, it fails in the First 

Amendment context.

Defendants also argue that Calzada’s encounter with the San Marcos 

police in 2018 is legally insufficient to support standing to seek prospective 

injunctive relief under City of Los Angeles v. Lyons, which held that a single 

42 709 F.2d 922, 930 (5th Cir. 1983).

43

 Id.

44 KVUE, Inc., 709 F.2d at 930.

45 Babbitt, 442 U.S. at 302.

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chokehold incident is not enough to confer standing to seek prospective relief 

against all future chokeholds.46 Again, under ordinary circumstances, this is 

likely a winning argument—isolated incidents of past unconstitutional acts 

generally cannot confer standing to seek prospective relief against future

unconstitutional acts.47 But Defendants’ point falls short in this First 

Amendment case because Plaintiffs have provided evidence of ongoing chill 

and financial injury. Indeed, in the speech context, past prosecutions are 

often “good evidence” that the likelihood of a future prosecution is not 

“chimerical.”48

In sum, the injury-in-fact element is satisfied by Plaintiffs’ evidence of 

their chilled drone usage—including lost financial opportunities and their 

conduct after Chapter 423 was enjoined.

On to traceability.

2

Even if Plaintiffs suffered an injury, Defendants argue that such injury 

is not fairly traceable to their conduct. After all, Defendants have never 

enforced Chapter 423. Again, we must disagree—with one small exception.

To establish traceability, Plaintiffs must show “a causal connection 

between the injury and the conduct complained of—the injury has to be fairly 

traceable to the challenged action of the defendant, and not the result of the 

independent action of some third party not before the court.”49

46 461 U.S. 95, 105 (1983).

47 See id.

48 Susan B. Anthony List, 573 U.S. at 164.

49 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up).

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Traceability is satisfied with respect to McCraw and Mathis. DPS is 

required to “enforce the laws protecting the public safety.”50 Any chill from 

the threat of enforcing Chapter 423 is thus fairly traceable to McCraw, as 

head of DPS. Indeed, we have on more than one occasion found litigants to 

have standing to sue Director McCraw in federal district court when Texas 

statutes or DPS are alleged to have violated the federal Constitution.51 The 

Highway Patrol, too, has statewide law-enforcement and arrest authority.52

As the person in charge of the Texas Highway Patrol, Chief Mathis is thus a 

proper defendant as well. Neither Director McCraw nor Chief Mathis denies

that they have the authority to enforce Chapter 423. Plaintiffs’ chilled 

“speech” is thus fairly traceable to those who would arrest them for violating 

Chapter 423.53 Calzada, for example, violates the statute only when lawenforcement agents are not around. Therefore, Plaintiffs’ chill is fairly 

traceable to these defendants.

Plaintiffs’ chill is also fairly traceable to District Attorney Higgins. As 

the district attorney, he is charged with prosecuting individuals who violate 

50 Tex. Gov’t Code § 411.002(a).

51 E.g., Fontenot v. McCraw, 777 F.3d 741, 746–47 (5th Cir. 2015) (approving 

litigants’ standing to bring Due Process claim seeking injunctive relief against Director 

McCraw as head of DPS, though ultimately dismissing the claims on mootness grounds); 

Nat’l Rifle Ass’n of Am., Inc. v. McCraw, 719 F.3d 338, 344–45 (5th Cir. 2013) (approving 

litigants’ standing to bring pre-enforcement Second Amendment challenge to Texas 

firearms law).

52 Tex. Gov’t Code § 411.032; Graf v. State, 925 S.W.2d 740, 742 (Tex. App. 

1996).

53 See Air Evac EMS, Inc. v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 

514 (5th Cir. 2017) (finding traceability satisfied where “state defendants oversee the 

[challenged] process,” reasoning that the “state defendants’ oversight” of the challenged 

program “places state defendants among those who cause [the plaintiff’s] injury”).

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criminal laws.54 For this reason, courts have long recognized that prosecutors 

are “natural targets for § 1983 injunctive suits since they are the state officers 

who are threatening to enforce and who are enforcing the law.”55 Indeed, the 

Hays County DA’s office prosecuted at least one drone-related case relating 

to Chapter 423. An injunction against future enforcement is therefore likely 

to redress Plaintiffs’ claimed injury.

We therefore conclude that Plaintiffs have standing to bring their First 

Amendment claims—though not their Due Process claims—against all three 

Defendants. With one exception: Plaintiffs can’t sue Defendants to enjoin 

enforcement of Chapter 423’s civil penalties because Defendants do not 

enforce those provisions—only private individuals harmed by a violation of 

Chapter 423 may sue to enforce the civil penalties.56 The district court lacked 

jurisdiction to order Defendants not to enforce § 423.006, and its order on 

that front must be vacated.

Satisfied on standing, at least partly, we turn to the next jurisdictional 

question: whether Defendants are entitled to sovereign immunity.

B

“Generally, States are immune from suit under the terms of the 

Eleventh Amendment and the doctrine of sovereign immunity.”57

“[S]overeign immunity also prohibits suits against state officials or agencies 

54 Tex. Gov’t Code § 44.205(b); cf. Lewis v. Scott, 28 F.4th 659, 664 (5th Cir. 

2022) (“[I]t is local prosecutors, not the Secretary, who are specifically charged with 

enforcement of the criminal prohibition on possessing a voter’s mail-in ballot.”).

55 Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 736 (1980).

56 See Tex. Gov’t Code § 423.006 (civil enforcement provisions); Whole 

Women’s Health v. Jackson, 142 S. Ct. 522, 534 (2021) (plaintiffs cannot sue the Texas 

Attorney General to enjoin civil actions enforced by private individuals).

57 Whole Woman’s Health, 142 S. Ct. at 532.

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that are effectively suits against a state.”58 “As an exception to the general 

rule of state sovereign immunity, Ex parte Young permits plaintiffs to sue a 

state officer in his official capacity for an injunction to stop ongoing violations 

of federal law.”59 Importantly: “The officer sued must have ‘some 

connection with the enforcement of the [challenged] act.’”60

While the “some connection” test is amorphous, we have identified 

three guidepoststo guide the analysis. “First, an official must have more than 

‘the general duty to see that the laws of the state are implemented.”61

Second, “the official must have ‘the particular duty to enforce the statute in 

question and a demonstrated willingness to exercise that duty.’”62 “Third, 

‘enforcement’ means compulsion or constraint.’”63

Two of these considerations are easily met here. As heads of Texas 

law-enforcement agencies, Director McCraw and Chief Mathis have more 

than just the general duty to see that the state’s laws are implemented—they 

are directly responsible for enforcing Texas’s criminal laws, including those 

set forth in Chapter 423. DPS and THP officers arrest people for violating 

Texas law, exercising “compulsion or constraint” in service of the law.64

But one key component of the analysis is missing—Defendants lack 

“a demonstrated willingness to exercise [their] duty” to enforce Chapter 

58 City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).

59 Lewis, 28 F.4th at 663.

60 Id. (quoting Ex parte Young, 209 U.S. 123, 157 (1908)).

61 Tex. All. for Retired Americans v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (quoting 

City of Austin, 943 F.3d at 999–1000).

62 Id. (quoting Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020)).

63 Id. (quoting City of Austin, 943 F.3d at 1000).

64 Id.

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423.65 While the record shows that DPS issued six warnings and one citation 

for conduct involving drone operators, none of these incidents was for 

violating Chapter 423 specifically. Thus, in the decade or so that Chapter 423 

has been on the books, the record evidence shows that Director McCraw, 

Chief Mathis, and their respective agencies have never enforced it. We have 

held that even “a scintilla of enforcement by the relevant state official with 

respect to the challenged law will do,”66 but here there is not even a scintilla 

of enforcement. Not even an iota of a scintilla. Zilch. 

We recognize, of course, that we have already concluded that 

Plaintiffs sustained an injury for purposes of their First Amendment preenforcement challenge because the assumed substantial threat of future 

enforcement has chilled their use of drones.67 But this conclusion does not 

necessarily conflict with the fact that Defendants have not shown a 

demonstrated willingness to exercise their enforcement duties under Ex parte 

Young. To be sure, we have suggested that, in some cases, “an official’s 

‘connection to enforcement’ is satisfied when standing has been 

established,”68 and we have similarly observed that there can be “significant 

overlap” between the standing and Ex parte Young inquiries.69 Those 

inquiries, however, are not completely coterminous,

70 and the mere fact that

65 Id.

66 Tex. Democratic Party, 978 F.3d at 179 (quoting City of Austin, 943 F.3d at 1002) 

(internal quotation marks omitted); see Speech First, 979 F.3d at 335 (distinguishing between 

facial and as-applied challenges for purposes of addressing “pre-enforcement challenges to 

recently enacted . . . statutes”).

67 See supra § II.A.1.

68 City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). 

69 E.g., Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 

507, 513–14 (5th Cir. 2017).

70 See Paxton, 943 F.3d at 1002 (stating that they are “not identical”).

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standing requirements may be relaxed for First Amendment preenforcement challenges does not mean that “the requirements of Ex parte 

Young have in any way been relaxed or vitiated.”71 Thus, because Plaintiffs 

have provided no evidence that Defendants will enforce Chapter 423, we 

hold that the Ex parte Young exception does not apply to Director McCraw 

or Chief Mathis and that they are entitled to sovereign immunity.

We cannot, however, extend Eleventh Amendment immunity to Kelly 

Higgins, the Hays County District Attorney. This is because “state sovereign 

immunity applies only to states and state officials, not to political subdivisions 

like counties and county officials.”72 Indeed, we have “held that Texas 

district attorneys [are] not protected by the Eleventh Amendment” precisely 

because they are county officials, not state officials.

73 Granted, a couple of 

unpublished opinions have suggested that a district attorney’s entitlement to 

Eleventh Amendment immunity may depend on whether he or she is 

performing in a local or state capacity.

74 But we understand our precedent to 

71 Okpalobi v. Foster, 244 F.3d 405, 417 n.17 (5th Cir. 2001) (en banc).

72 Russell v. Jones, 49 F.4th 507, 512 (5th Cir. 2022).

73 Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999).

74 See Spikes v. Phelps, 131 F. App’x 47, 49 n.1 (5th Cir. 2005) (“Texas district 

attorneys are shielded by Eleventh Amendment immunity for acts performed as state 

officers in the scope of criminal prosecution, but they are not so shielded when they act 

with respect to local policies.”); Quinn v. Roach, 326 F. App’x 280, 292 (5th Cir. 2009)

(“[D]istrict attorneys . . . in Texas are agents of the state when acting in their prosecutorial

capacities.”). 

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employ a more categorical approach,75 informed by various factors76 that 

Higgins does not otherwise argue support his position that he is protected by 

the Eleventh Amendment. 

Accordingly, while Defendants McCraw and Mathis are entitled to 

state sovereign immunity, Defendant Higgins is not.

C

Moving to the merits, we now consider whether the Surveillance and 

No-Fly provisions facially violate the First Amendment. They do not. 

1

We start with the No-Fly provisions, which make it unlawful to fly a 

drone under 400 feet above a correctional facility, detention facility, critical 

infrastructure facility, or sports venue—subject, of course, to numerous 

statutory exceptions, such as the one for commercial purposes.77

But Plaintiffs’ First Amendment challenge to the No-Fly provisions 

falters because “only conduct that is ‘inherently expressive’ is entitled to 

First Amendment protection.”78 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 

75 E.g., Hudson, 174 F.3d at 691 (“After carefully weighing these factors against one 

another, we conclude that the Orleans Parish District Attorney’s Office is not an arm of 

the state.”); Chrissy F. Medley v. Miss. Dep’t of Public Welfare, 925 F.2d 844, 849 (5th Cir. 

1991) (holding that “the Mississippi District Attorney is a state official” for Eleventh 

Amendment purposes because state law provides that the district attorney’s office would 

be “primarily state-funded” and its authority would extend to “statewide concerns”). 

76 See Clark v. Tarrant Cnty., 798 F.2d 736, 744–45 (5th Cir. 1986) (outlining six 

factors to determine “whether an entity is entitled to Eleventh Amendment immunity”). 

77 Tex. Gov’t Code §§ 423.0045 & 423.0046; Tex. Penal Code § 38.115.

78 Voting for Am., Inc. v. Steen, 732 F.3d 382, 388 (5th Cir. 2013) (quoting Rumsfeld 

v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006)).

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has anything to do with speech or expression. These are flight restrictions, 

not speech restrictions.

Plaintiffs attempt to convert the No-Fly provisions into speech 

regulations by noting that drones are often used for photography. By making 

it illegal to fly drones over sensitive sites like prisons, they say, Chapter 423 

necessarily prohibits photojournalists from capturing images from the air 

directly over those facilities. They claim that this prevents them from 

capturing newsworthy subjects cheaply and safely. Plaintiffs take issue with 

the absence of a specific exemption for the press and argue that “Chapter 423 

directly targets speech.”

We are not persuaded. The Supreme Court put it this way nearly 60 

years ago: 

There are few restrictions on action which could not be clothed 

by ingenious argument in the garb of decreased data flow. For 

example, the prohibition of unauthorized entry into the White 

House diminishes the citizen’s opportunities to gather 

information he might find relevant to his opinion of the way the 

country is being run, but that does not make entry into the 

White House a First Amendment right. The right to speak and 

publish does not carry with it the unrestrained right to gather 

information.79

Because the No-Fly provisions have nothing to do with speech or even 

expressive activity, they do not implicate the First Amendment. Accordingly, 

we reverse the district court’s judgment that the No-Fly provisions facially 

violate the First Amendment.

We turn next to the Surveillance provisions, which, unlike the No-Fly 

provisions, implicate at least some First Amendment protections.

79 Zemel v. Rusk, 381 U.S. 1, 16–17 (1965).

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2

To refresh, the Surveillance provisions make it unlawful to use a drone 

to “capture an image” of private individuals or property, without their 

consent, “with the intent to conduct surveillance on the individual or 

property captured in the image.”80 And just like the No-Fly provisions, the 

Surveillance provisions have several express exceptions that do not include 

the press.81 Plaintiffs characterize aerial surveillance as “speech” and assert 

that, by letting some people use drones to capture images but not others, the 

Surveillance provisions violate the First Amendment.

Courts have long held that, unlike flight restrictions, restrictions on 

filming can implicate the First Amendment, at least to some extent. And the 

extent of constitutional protections for the right to film is subject to ongoing 

and vigorous debate—particularly when, as in this case, third parties’ privacy 

rights are threatened. For example, the Fourth Circuit recently held that 

undercover animal-rights activists have a First Amendment right to infiltrate 

companies and clandestinely film them notwithstanding a North Carolina

property-protection law.82 Judge Rushing dissented, stressing the point 

that, even though newsgathering is afforded some First Amendment 

protection, “an interest in newsworthy information does not confer a First 

Amendment right to enter private property . . . and secretly record” because 

“the mere act of recording by itself is not categorically protected speech.”83

In another recent case, the Ninth Circuit held that an Oregon law prohibiting 

the secret recording of conversations violates the First Amendment, 

80 Tex. Gov’t Code § 423.003(a).

81 Id. § 423.002(a).

82 People for the Ethical Treatment of Animals, Inc. v. N.C. Farm Bureau Fed’n, Inc., 

60 F.4th 815, 824–834 (4th Cir. 2023) (PETA).

83 See id. at 845–47 (Rushing, J., dissenting).

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reasoning that, under its clear and binding precedent, the act of recording is 

itself an inherently expressive activity.84 Judge Christen dissented, 

arguing, among other things, that the right to free speech does not necessarily 

include an unrestrained right to record others’ speech.

85

These debates are not new. The Seventh Circuit in ACLU of Illinois v. 

Alvarez held more than a decade ago that “[t]he act of making an audio or 

audiovisual recording is necessarily included within the First Amendment’s 

guarantee of speech and press rights as a corollary of the right to disseminate 

the resulting recording.”86 That court reasoned that the “right to publish or 

broadcast an audio or audiovisual recording would be insecure, or largely 

ineffective, if the antecedent act of making the recording is wholly 

unprotected.”87 Following that premise, the Seventh Circuit went on to hold 

as likely unconstitutional an Illinois anti-eavesdropping statute. Judge 

Posner dissented, warning that such novel “interpretations” of the First 

Amendment have no foundation in the text or original understanding of the 

First Amendment,88 and urging courts to tread carefully when elevating the 

right to record private individuals above the privacy rights of those 

individuals.89

In our own circuit, the leading case is Turner v. Lieutenant Driver.

There, we held that “the First Amendment protects the right to record the 

84 Project Veritas v. Schmidt, 72 F.4th 1043, 1055 (9th Cir. 2023)(citing Animal Legal 

Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018)).

85 See id. at 1069 (Christen, J., dissenting).

86 679 F.3d 583, 595 (7th Cir. 2012).

87 Id.

88 Id. at 610 (Posner, J., dissenting).

89 Id. at 614.

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police.”90 In reaching that conclusion, we reasoned that the Supreme Court 

has held that newsgathering and the right to receive information are entitled 

to First Amendment protection, “even though this right is not absolute.”91

Citing the Seventh Circuit’s decision in Alvarez, we also suggested that “the 

First Amendment protects the act of making a film, as ‘there is no fixed First 

Amendment line between the act of creating speech and the speech itself.’”92

Finally, in recognizing a right to film the police in the course of their public 

duties, we reasoned that the underlying principles of the First Amendment 

counseled us to safeguard the right of the people to hold government officials 

accountable—filming them in the course of their duties being one way to do 

that.93 We emphasized, however, that the right to film the police is not 

unqualified. The right extends only to filming police performing their public 

duties in public places.94 And even then, the right is “subject to reasonable 

time, place, and manner restrictions.”95 Following Turner’s lead, we hold 

that restrictions on the right to film—not just police but in general—are 

subject to at least some level of First Amendment scrutiny.

The obvious question then becomes: How much scrutiny? 

“In an abundance of caution,” “we apply the intermediate scrutiny 

test,” “which balances the individual’s right to speak with the government’s 

power to regulate.”96 While aerial surveillance is not inherently expressive, 

and even though the non-expressive aspects of the Surveillance provisions 

90 848 F.3d 678, 690 (5th Cir. 2017).

91 Id. at 688.

92 Id. at 688–89 (quoting Alvarez, 679 F.3d at 596).

93 Id. at 699.

94 Id. (citing Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)).

95 Id. (internal quotation marks omitted).

96 Kleinman v. City of San Marcos, 597 F.3d 323, 328 (5th Cir. 2010).

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predominate over any expressive component, intermediate scrutiny strikes 

us as appropriate in this context for several reasons. 

First, it is the default level of scrutiny applicable to laws like the 

Surveillance provisions, which do not directly regulate the content of speech 

and which “pose a less substantial risk of excising certain ideas or viewpoints 

from the public dialogue.”97 This is particularly appropriate given the reality 

that the Surveillance provisions do not directly or even primarily regulate 

speech and expression—nor do they target any particular message, idea, or 

subject matter—but neither are they pure drone-operating laws. Second, it is 

the level of scrutiny suggested in our landmark right-to-film case, Turner v. 

Lieutenant Driver.

98 Third, it is the level of scrutiny we applied in an 

analogous case. In Peavy v. WFAA-TV, Inc., we considered a First 

Amendment challenge to anti-wiretapping laws prohibiting the disclosure of 

illegally intercepted telephone conversations.99 Reasoning that the laws were 

content-neutral and restricted communication based solely on the means by 

which it was acquired, we held that intermediate scrutiny applied.100

The Surveillance provisions here are similar to the anti-wiretapping 

laws in Peavy in that they regulate not what images can be captured but 

instead the means by which those images can be captured. They are also 

similar in that they call for us to balance First Amendment values against 

third parties’ right to privacy. Finally, while the Surveillance provisions no 

doubt have an incidental effect on speech, they more closely resemble 

conduct regulations (aerial surveillance), not regulations of expression, or 

time, place, and manner restrictions (using a drone from a height above eight 

97 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).

98 See 848 F.3d at 690.

99 221 F.3d 158, 188 (5th Cir. 2000)

100 Id. at 191.

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feet)—both of which fall under the umbrella of intermediate scrutiny.101

Intermediate scrutiny thus respects the First Amendment values attached to 

photography while remaining cognizant of the obvious fact that recording 

from the sky—something the average private person cannot avoid and from 

where the average photographer would not be able to reach—is simply not 

the same thing as expressing one’s views. 

Plaintiffs argue that strict scrutiny should apply. So, before we apply

intermediate scrutiny, we explain why we disagree with Plaintiffs’ position. 

They offer three “paths” to strict scrutiny, none of which is persuasive.

First, like the district court, they reason the Surveillance provisions 

are content-based restrictions on speech (filming, more precisely) because 

they “require the enforcing official to inquire into the contents of the image 

to determine whether it is prohibited.”102 “An official must first ascertain the 

subject matter of the drone image to determine whether it is permissible 

under the statute. Therefore, it is the content of the image that determines 

its permissibility—the definition of a content-based restriction.”103 But the 

Surveillance provisions are not content-based. They classify images as lawful 

or unlawful based not on what is in the picture, but on the basis of how the 

picture is taken. The very same aerial image can be unlawfully captured using 

a drone but lawfully captured using a helicopter, a tall ladder, a high building, 

or even a really big trampoline. Indeed, the same image could be captured 

101 See United States v. O’Brien, 391 U.S. 367, 376 (1968) (holding that intermediate 

scrutiny applies to regulations “when ‘speech’ and ‘nonspeech’ elements are combined in 

the same course of conduct”); Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 

U.S. 596, 607 n.17 (1982) (“Of course, limitations on the right of access that resemble 

‘time, place, and manner’ restrictions on protected speech would not be subjected to such 

strict scrutiny.” (citation omitted)).

102 McCraw, 594 F. Supp. 3d at 805.

103 Id. at 806.

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using a drone, so long as the drone is flown at a height below eight feet—

roughly the height of a person standing on the ground holding a camera above 

his or her head.104

Separately, the district court’s analysis cannot be upheld in light of

recent developments in First Amendment law. At the time it issued its 

decision in this case, the district court did not have the benefit of City of 

Austin v. Reagan National Advertising of Austin, LLC, which held that a law is 

not content-based simply because one must read a sign to determine whether 

it is lawful under the challenged rule.105 Here, the district court concluded 

that the Surveillance provisions are content-based simply because one must 

look at the image to determine whether it violates Chapter 423.106 That is 

(now) an incorrect conclusion of law. We thus reject the notion that the 

Surveillance provisions are content-based restrictions on speech.

Second, Plaintiffs take the position, as did the district court, that the 

Surveillance provisions discriminate on the basis of content because they are 

speaker-based, again triggering strict scrutiny.107 They argue that Chapter 

423 impermissibly favors certain speakers—well, drone operators—and 

disfavors others by excepting some operators from the Surveillance 

provisions. For instance, despite the blanket no-drone-surveillance rule, the 

law exempts scholars who use drones for their academic research and the 

military for its exercises and missions.108

104 Tex. Gov’t Code § 423.002(a)(14).

105 142 S. Ct. 1464, 1474 (2022).

106 Nat’l Press Photographers Ass’n, 594 F. Supp. 3d at 805.

107 See id. at 806.

108 Tex. Gov’t Code §§ 423.002(a)(1), (3). 

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While the law certainly favors some drone operators over others, the 

Surveillance provisions are not for that reason automatically subject to strict 

scrutiny. The reason that speaker-based distinctions often trigger strict 

scrutiny is that restricting speakers can be a facially content-neutral loophole 

to suppress certain content or viewpoints disfavored by the government.109

But concerns over content and viewpoint discrimination are not present in 

the Surveillance provisions’ preference for certain drone operators. While 

the law distinguishes among photographers, it does not distinguish among 

photographs—Chapter 423 cares not for the content of the image. For 

Chapter 423, what’s in the photograph is irrelevant. It is not enough to say 

that the law distinguishes between speakers; to trigger strict scrutiny, the 

distinction must be based on the speaker’s message, not just the manner in 

which the speaker communicates.

110 The latter situation applies here. “Thus, 

the fact that the provisions benefit [some photographers] and not [others] 

does not call for strict scrutiny under our precedents.”111

Finally, Plaintiffs argue that the Surveillance provisions are subject to 

strict scrutiny because the law imposes a direct burden on newsgathering and 

journalism. Drones, they say, “have become quintessential tools for 

documenting newsworthy events.” Indeed, the undisputed record evidence 

shows that photojournalists like Calzada and Wade find drones to be a very 

helpful technology in their trade.

109 Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015).

110 Turner Broad. Sys., 512 U.S. at 645 (“It is true that the [challenged] provisions 

distinguish between speakers in the television programming market. But they do so based 

only upon the manner in which speakers transmit their messages to viewers, and not upon 

the messages they carry. . . . So long as they are not a subtle means of exercising a content 

preference, speaker distinctions of this nature are not presumed invalid under the First 

Amendment.”).

111 Id. at 659.

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But this argument also fails to trigger strict scrutiny. The Supreme 

Court has stated, in no uncertain terms, that “the First Amendment does not 

guarantee the press a constitutional right of special access to information not 

available to the public generally.”112 In Branzburg, the High Court refused to 

create a First Amendment privilege for journalists to keep them from having 

to participate in grand jury investigations on the ground that revealing 

confidential informants would hinder the press’s ability to gather news. In 

rejecting that claimed privilege, the Court reasoned that “the First 

Amendment does not invalidate every incidental burdening of the press that 

may result from the enforcement of civil or criminal statutes of general 

applicability.”113 “The Court has emphasized that” the press “has no special 

immunity from the application of general laws. . . . no special privilege to 

invade the rights and liberties of others.”114 “Although stealing documents 

or private wiretapping could provide newsworthy information, neither 

reporter nor source is immune for conviction for such conduct, whatever the 

impact on the flow of news.”115 And journalists “have no constitutional right 

of access to the scenes of crime or disaster when the general public is 

excluded.”116 Thus, while drones are no doubt a helpful tool in the 

journalist’s toolkit, restrictions on drone usage do not trigger strict scrutiny. 

“From the beginning of our country the press has operated without 

constitutional protection for [drones], and [yet] the press has flourished.”117

112 Branzburg v. Hayes, 408 U.S. 665, 684 (1972); see also Davis v. E. Baton Rouge 

Par. Sch. Bd., 78 F.3d 920, 928 (5th Cir. 1996) (“[T]he news media have no right to discover 

information that is not available to the public generally.”).

113 Branzburg, 408 U.S. at 682.

114 Id. at 683 (quoting Associated Press v. NLRB, 301 U.S. 103 (1937)).

115 Id. at 691.

116 Id. at 684–85.

117 Id. at 698–99.

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In short, “generally applicable laws do not offend the First 

Amendment simply because their enforcement against the press has 

incidental effects on its ability to gather and report the news.”118 While 

newsgathering is no doubt critical to a free society, the right to gather news 

affords no right to compel others to supply information.119 Here, Plaintiffs 

claim a First Amendment right to use aerial drones to conduct 

“surveillance” on private persons and property without consent.120 But in 

light of the authorities above, no such right exists. The press “has no special 

privilege to invade the rights and liberties of others.”121 We stress that the 

Surveillance provisions protect only private individuals and property.122 They 

expressly permit using drones to capture images on “public real property or 

a person on that property.”123 This makes good sense because there is an 

important and obvious “distinction between recording in public spaces and 

unauthorized recording on private property.”124

At most, then, intermediate scrutiny applies to the Surveillance 

provisions. After all, the Surveillance provisions regulate not what image is 

captured, but where it is taken from (above eight feet in the air) and how it is 

taken (from a drone, without permission, and with the intent to conduct 

surveillance).125 Such an approach comports not just with Turner but also 

118 Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).

119 Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (plurality op.).

120 Tex. Gov’t Code § 423.003(a).

121 Branzburg, 408 U.S. at 683.

122 Tex. Gov’t Code § 423.003(a) (“individual or privately owned real 

property”).

123 Id. § 423.002(a)(15).

124 PETA, 60 F.4th at 845 (Rushing, J., dissenting) (collecting cases).

125 Tex. Gov’t Code §§ 423.003(a), 423.002(a)(14), 423.002(a)(6).

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with Peavy v. WFAA-TV, Inc., where we held that a First Amendment 

challenge to anti-wiretapping statutes were subject to intermediate scrutiny 

by reasoning along similar lines—that the anti-wiretapping laws regulated 

“the manner in which the information is acquired.”126

We now apply that standard. 

Under intermediate scrutiny, “[a] content-neutral regulation will be 

sustained if it furthers an important governmental interest; if the 

governmental interest is unrelated to the suppression of free expression; and 

if the incidental restriction on alleged First Amendment freedoms is no 

greater than is essential to the furtherance of that interest.127 “To satisfy this 

standard, a regulation need not be the least speech-restrictive means of 

advancing the Government’s interests.”128 “Rather, the requirement of 

narrow tailoring is satisfied ‘so long as the regulation promotes a substantial 

government interest that would be achieved less effectively absent the 

regulation.’”129 “Narrow tailoring in this context requires, in other words, 

that the means chosen do not ‘burden substantially more speech than is 

necessary to further the government’s legitimate interests.’”130

Peavy is particularly pertinent. As previously discussed, there we held 

that anti-wiretapping statutes—laws prohibiting surreptitious surveillance—

survived intermediate scrutiny.131 Relevant here, we held that the 

government has “a substantial interest in protecting the confidentiality of

126 Peavy, 221 F.3d at 188–89 (emphasis added).

127 Turner Broad. Sys., 512 U.S. at 662 (internal quotation marks omitted).

128 Id.

129 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)) (alteration 

accepted).

130 Id. (quoting Ward, 491 U.S. at 799).

131 221 F.3d at 193.

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private wire, oral, and electronic communications,” that this privacy interest 

is “unrelated to the suppression of free expression,” and that by making 

unlawful the interception and disclosure of private wire transmissions, the 

anti-wiretapping acts were narrowly tailored to the governmental interest in 

protecting privacy.132

We follow Peavy here. As that case held, the government has a 

substantial interest in protecting the privacy rights of its citizens. Indeed, we 

noted that the privacy interests at stake “are of constitutional dimension.”133

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. And as for 

tailoring—as in Peavy, the government’s ability to accomplish its goal of 

protecting privacy rights would be “achieved less effectively” absent the 

Surveillance provisions.134 The law is also tailored to bar only surveillance 

that could not be achieved through ordinary means—the law contains an 

exception for images captured “from a height no more than eight feet above 

ground level in a public place, if the image was captured without using any 

electronic, mechanical, or other means to amplify the image beyond normal 

human perception.”135 We therefore conclude that the law survives 

intermediate scrutiny.

For similar reasons, we reject Plaintiffs’ catchall contention that the 

Surveillance provisions violate the overbreadth doctrine. “To show 

overbreadth, plaintiffs must establish that [the Surveillance provisions] 

132 Id. at 192–93.

133 Id. at 192.

134 See id. at 192–93.

135 Tex. Gov’t Code § 423.002(a)(14). 

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encompass[] a substantial number of unconstitutional applications ‘judged in 

relation to the statute’s plainly legitimate sweep.’”136 Plaintiffs have not done 

so. To the contrary, as we have explained, the Surveillance provisions are 

narrowly tailored to Texas’s substantial interest in protecting her citizens’ 

right to privacy. Plaintiffs have identified no unlawful applications of Chapter 

423, and their arguments to the contrary simply assume Chapter 423 is 

unlawful to begin with. We therefore reverse the district court’s holding that 

Chapter 423 is facially overbroad.137

In sum, the district court erred in holding that Chapter 423 facially 

violates the First Amendment. We hasten to emphasize that the Surveillance 

provisions are geared only toward protecting private individuals and 

property—they expressly permit aerial surveillance and photography of 

public property and persons thereon.138 This distinction between public and 

private subjects is critical, because there is a key “distinction between 

recording in public spaces and unauthorized recording on private 

property.”139 It is where we drew the line in Taylor—there is a qualified right 

to film public officials performing public duties in public places. And it is why 

a different outcome exists both in Peavy and in this case, where the subject of 

the surveillance is private. We are more likely to find the government’s 

interest in privacy to be substantial where the subject is private rather than 

public.

Having resolved Defendants’ appeal, we turn now to Plaintiffs’ crossappeal, which challenges the dismissal of their field-preemption claim. 

136 Seals v. McBee, 898 F.3d 587, 593 (5th Cir. 2018), as revised (Aug. 9, 2018) 

(quoting United States v. Stevens, 559 U.S. 460, 473 (2010)).

137 See Nat’l Press Photographers Ass’n, 594 F. Supp. 3d at 808.

138 Tex. Gov’t Code § 423.002(a)(15).

139 PETA, 60 F.4th at 845 (Rushing, J., dissenting).

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D

Plaintiffs argue that the district court erred in dismissing their claim 

that the No-Fly provisions are preempted by federal regulation of the national 

airspace.140 Plaintiffs offer two theories of preemption: field preemption and 

obstacle preemption. We find that neither applies here.

Before proceeding to the merits of these claims, though, we must first 

assure ourselves that Plaintiffs have standing to challenge the No-Fly 

provisions on preemption grounds.141 Ordinarily, Plaintiffs’ preemption 

challenge to Chapter 423’s enforcement would meet the same fate as their 

Due Process challenge: dismissal for lack of any imminent or concrete threat 

of enforcement or prosecution. In a recent opinion, however, we held that 

ongoing pecuniary harm—specifically, paying more than others because of 

the challenged law—can confer standing to challenge a state regulation on 

preemption grounds, since enjoining the state law “erases” future pecuniary 

harm resulting from the challenged law.142

Here, at least one Plaintiff has an ongoing pecuniary injury similar to

that in Young Conservatives. NPPA member Wade testified that Chapter 423 

is costing him “thousands of dollars” in lost photojournalism opportunities, 

as his clients are unwilling to violate Chapter 423 or pay for him to do so. 

Chapter 423 places law-abiding Texas photojournalists like Wade at a 

disadvantage to competitors from out of state and those who do not know of 

or do not follow Chapter 423. As Pappalardo testified, for freelance 

journalists like him, the ability to enhance a story with “aerial imagery can be 

the difference between selling a pitch or being denied.” Plaintiffs’ 

140 See Nat’l Press Photographers Ass’n, 504 F. Supp. 3d at 591.

141 See Keyes v. Gunn, 890 F.3d 232, 235–36 (5th Cir. 2018).

142 Smatresk, 73 F.4th at 310.

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compliance with Chapter 423 is costing them real money. Because this 

ongoing financial injury is fairly traceable to the likelihood of Chapter 423’s 

enforcement, and because an injunction is likely to redress the injury, we hold 

that Plaintiffs have standing to raise their preemption claim.143

Nevertheless, Plaintiffs’ preemption claims fail on the merits. 

We start with field preemption. “Field preemption occurs when 

States are precluded from regulating conduct in a field that Congress, acting 

within its proper authority, has determined must be regulated by its exclusive 

governance.”144 “Although the Supreme Court has recognized fieldpreemption claims, it has indicated that courts should hesitate to infer field 

preemption unless plaintiffs show that complete ouster of state power 

including state power to promulgate laws not in conflict with federal laws was 

the clear and manifest purpose of Congress.”145 When Congress has not 

expressly preempted state law, as here, field preemption may still “be inferred 

from a scheme of federal regulation so pervasive as to make reasonable the 

inference that Congress left no room for the States to supplement it, or where 

an Act of Congress touches a field in which the federal interest is so dominant 

that the federal system will be assumed to preclude enforcement of state laws 

on the same subject.”146

Field preemption of state law is disfavored. Courts should not infer 

field preemption in “areas that have been traditionally occupied by the 

states,” in which case congressional intent to preempt must be “clear and 

143 See id.

144 City of El Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (internal quotation 

marks omitted).

145 Id. (internal quotation marks omitted).

146 English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (cleaned up).

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manifest.”147 States’ police powers, including those necessary to safeguard 

the protection of citizens, fall into this category.148 Additionally, “where, as 

in this case, Congress has entrusted an agency with the task of promulgating 

regulations to carry out the purposes of a statute, as part of the preemption 

analysis we must consider whether the regulations evidence a desire to occupy 

a field completely. Preemption should not be inferred, however, simply 

because the agency’s regulations are comprehensive.”149 And importantly, 

field preemption is not to be found where federal “regulations, while 

detailed, appear to contemplate some concurrent state regulation.”150

Here, Plaintiffs have not shown that Congress or the relevant agency, 

the Federal Aviation Administration,151 intended to occupy the entire field of 

drone regulation. They point out—correctly—that there are some federal 

regulations relating to unmanned aerial vehicles. But as the district court 

astutely observed, “federal law has not completely preempted the field 

regarding [drones] flying over certain buildings and structures.”152

In fact, the FAA has expressly declined to preempt all state regulation 

of drones. In promulgating a final agency rule on drone regulation, the agency 

stated, “The FAA . . . reviewed the comments and . . . decided that specific 

147 Id. (cleaned up).

148 Cipollone v. Ligget Grp., Inc., 505 U.S. 504, 518 (1992); City of Erie v. Pap’s A.M., 

529 U.S. 277, 296 (2000) (“[E]fforts to protect public health and safety are clearly within 

the city’s police powers”).

149 R.J. Reynolds Tobacco Co. v. Durham Cnty., 479 U.S. 130, 149 (1986) (emphasis 

added) (internal citation omitted).

150 Id.

151 See 49 U.S.C. § 40103.

152 Nat’l Press Photographers Ass’n, 504 F. Supp. 3d at 589 (emphasis added).

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regulatory text addressing preemption is not required in the final rule.”153

“The FAA is not persuaded that including a preemption provision in the final 

rule is warranted at this time. Preemption issues involving small UAS 

necessitate a case-specific analysis that is not appropriate in a rule of general 

applicability. Additionally, certain legal aspects concerning small UAS use 

may be best addressed at the State or local level. For example, State law and 

other legal protections for individual privacy may provide recourse for a 

person whose privacy may be affected through another person’s use of a 

UAS.”154 These statements unequivocally show that the applicable federal 

“regulations, while detailed, appear to contemplate some concurrent state 

regulation.”155 That is sufficient, but there is more.

Shortly before oral argument, the parties alerted the court to a recently 

issued “Fact Sheet” from the FAA. The fact sheet, though it reasserts 

federal sovereignty over issues of “aviation safety or airspace efficiency,” 

nonetheless confirms our conclusion today.156 For in it, the FAA again 

expressly contemplates concurrent regulation with States and localities. That 

ends the matter.157 But even more importantly, as an example of a permissible

concurrent state regulation, the fact sheet states that “security-related 

restrictions over open-air water treatment facilities or certain types of critical 

infrastructure” are likely not to be preempted, particularly if the restrictions 

are “limited to the lower altitudes.” The No-Fly provisions, which prohibit 

153 Operation and Certification of Small Unmanned Aircraft Systems, 81 FR 42064-

01, 42194 (June 28, 2016).

154 Id.

155 R.J. Reynolds, 479 U.S. at 149.

156 State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Fed.

Aviation Admin. (July 14, 2023), https://www.faa.gov/sites/faa.gov/files/State-LocalRegulation-of-Unmanned-Aircraft-Systems-Fact-Sheet.pdf.

157 See R.J. Reynolds, 479 U.S. at 149.

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drone flights less than 400 feet over critical infrastructure, are thus expressly 

permitted, not preempted, even under the fact sheet.

Plaintiffs’ other theory of preemption, that Chapter 423 poses an 

obstacle to federal objectives,158 fails for similar reasons.159 So-called obstacle 

preemption exists when “the state law ‘stands as an obstacle to the 

accomplishment and execution of the full purposes of and objectives of 

Congress.’”160 Plaintiffs contend that Chapter 423 meets that formulation 

here because it undermines the federal government’s twin goals of 

uniformity and exclusivity in the national airspace. As we have already 

observed, however, the FAA expressly contemplates concurrent state 

regulation of drones. So, as far as we can tell, Chapter 423 cannot pose any 

obstacle to national uniformity or exclusivity with respect to drone regulation 

because the FAA has never pursued such goals.

161

158 According to Defendants, Plaintiffs forfeited this theory of preemption because 

it was not raised in their complaint below. Legal theories, however, need not be raised in a 

complaint to be considered. Plaintiffs raised their obstacle-preemption argument to the 

district court, and that is sufficient to preserve it for our review. See Thomas v. Aneritas Life 

Ins. Corp., 34 F.4th 395, 402 (5th Cir. 2022); see also Johnson v. City of Shelby, 574 U.S. 10, 

12 (2014) (per curiam) (“The federal rules effectively abolish the restrictive theory of 

pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the 

plaintiff’s claim for relief.” (quoting 5 C. Wright & A. Miller, Federal 

Practice & Procedure § 1219, at 277–78 (3d ed. 2004)). 

159 This is perhaps unsurprising given that “the categories of preemption are not 

rigidly distinct.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 n.6 (2000). 

160 Oneok v. Learjet, Inc., 575 U.S. 373, 377 (2015) (quoting California v. ARC Am. 

Corp., 490 U.S. 93, 100 (1989)). Another way in which obstacle preemption can exist is if 

“compliance with both state and federal law is impossible.” Id. Plaintiffs do not argue that 

compliance with Chapter 423 and FAA regulations is impossible, however, so we do not 

address it. 

161 See Skysign Int’l, Inc. v. City & Cnty. of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 

2002) (“[S]tate law cannot by its mere existence stand as such an obstacle when the federal 

government contemplates coexistence between federal and local regulatory schemes.”). 

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Accordingly, Chapter 423 is not preempted, and we affirm the district 

court’s dismissal of Plaintiffs’ preemption claims.

III

Plaintiffs picked an uphill battle by styling this litigation as a facial, preenforcement challenge. “A facial challenge . . . is, of course, the most difficult 

challenge to mount successfully.”162 And the “speech” right they demand is 

sweeping: an unqualified First Amendment right to conduct aerial 

surveillance on non-consenting private individuals on private property, and a 

First Amendment right to fly drones at low altitudes directly over critical 

infrastructure. 

Nothing in the original understanding of the First Amendment or in 

our binding precedent permits such a result. In fact, nothing in the 

Constitution permits an individual to film his neighbor in the privacy of her 

own home—stealthily from the air—for purposes of conducting 

“surveillance.” Under Plaintiffs’ novel theory of the First Amendment, laws 

prohibiting stalking—and even voyeurism—would fall in the name of “free 

speech.”

We emphasize that our holding today does not foreclose all First 

Amendment and Due Process challenges to Chapter 423. It is possible that, 

in an as-applied challenge, a plaintiff or defendant may persuasively show 

that a particular enforcement of Chapter 423 runs afoul of free speech or 

fairness principles. But it is not this case. 

We therefore 

• VACATE the portion of the district court’s order that 

enjoins Defendants from enforcing the civil provisions of 

Chapter 423 and REMAND with instructions to dismiss 

162 United States v. Salerno, 481 U.S. 739, 745 (1987).

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that portion of Plaintiffs’ claim for lack of Article III 

standing; 

• VACATE the portion of the district court’s order that 

enjoins Defendants from enforcing Chapter 423 on Due 

Process grounds and REMAND with instructions to 

dismiss the Due Process claims for lack of Article III 

standing;

• VACATE the portion of the district court’s order that 

enjoins Director McCraw and Chief Mathis from enforcing 

Chapter 423 on First Amendment grounds and REMAND

with instructions to dismiss Plaintiffs’ First Amendment 

claims against them on grounds of sovereign immunity.

• REVERSE the portion of the district court’s order that 

enjoins Defendant Higgins from enforcing Chapter 423 on 

First Amendment grounds and REMAND with 

instructions to enter judgment in favor of Defendant 

Higgins on Plaintiffs’ First Amendment claims; and

• AFFIRM the district court’s dismissal of Plaintiffs’ 

preemption claims.

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