By Dronelife Features Editor Jim Magill
A drone pilot has sued the FAA, claiming that an FAA temporary flight restriction (TFR) that restricts UAS operations above and near federal law enforcement operations is overbroad and violates the First Amendment rights of reporters covering government-sanctioned activity.
Attorneys with The Reporters Committee for the Freedom of the Press (RCFP) filed the suit March 16 in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of drone pilot and Minneapolis-based photojournalist Robert Levine. The suit seeks to overturn Notice to Airmen 6/4375, a temporary flight restriction the FAA issued on January 16.
The unusually expansive NOTAM imposes sweeping flight restrictions that prohibit all unmanned aircraft from operating within 3,000 lateral feet and 1,000 vertical feet of “Department of Homeland Security (DHS) facilities and mobile assets, including vessels and ground vehicle convoys.”
Unlike the usual type of TFR, which the FAA typically imposes to restrict UAV flights based on specific limited times and places — such as in the area near a stadium hosting the Super Bowl — NOTAM 6/4375 can go into effect without any advanced notice to pilots. And because, unlike most TFRs, the restrictions cover moving vehicles, it makes it difficult for drone pilots to know when they’re in violation, especially if the law enforcement operation involves unmarked vehicles, the lawsuit contends.
“That includes photojournalists like (Levine) who uses drones to gather news and exercise his First Amendment right to photograph or film matters of public concern. The predictable result has been to burden and discourage all drone flights, along with a grave chilling effect on the use of drones for newsgathering in particular,” the suit states.
In an interview with DroneLife, Levine said the TFR discouraged him from using his drone to collect images of the civil unrest arising from Operation Metro Surge, the controversial immigration enforcement action conducted by DHS agents in Minneapolis earlier this year. He said prior to the issuance of the NOTAM he had used his drone extensively to document the ongoing protest movement.
“I had shot a couple marches in December and I shot a big rally,” he said. “I was out trying to do my part as a journalist to cover this stuff.”
Levine said that when the NOTAM came out in January, he realized that its sweeping scope would prevent him from being able to fly his drone to do his job virtually anywhere in his home town. At the height of the immigration crackdown there were between 3,000 and 4,000 DHS agents from Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) conducting raids across the Twin Cities region, he said.
“I still wanted to go out and document what was going on because it was the height of that Metro Surge operation. But I was aware that these ICE agents in particular were driving around in civilian cars, in unmarked vehicles with swapped license plates, masquerading themselves as delivery drivers, all kinds of things,” he said.
“And so, when I saw that NOTAM and I read it closely, it seemed like you just couldn’t fly in the Twin Cities anymore.”
Grayson Clary, one of the RCFP attorneys handling the case, said Levine had reached out to the FAA to get some clarification as to when and where he could legally fly his drone under NOTAM 6/4375, but did not receive a satisfactory response.
Levine said he then decided to sue the FAA to overturn the restriction, but at first could not find an attorney willing to take the case.
“I started looking for lawyers and I must have reached out to five or six different lawyers and law firms here in the Twin Cities and around the country,” he said. And, I found a sympathetic ear in a lot of places, but nobody was willing to just volunteer to take the case.”
He said he was told that he would have to pony up about $50,000 just to get a petition to challenge the TFR started in court. Then, with a 60-day period in which such a suit could be filed rapidly expiring, one of the lawyers that Levine was in contact with referred him to the Reporters Committee, whose attorneys quickly agreed to take the case.
“I called them and left a message on their machine,” Levine said. “They called me back right away and they hadn’t heard about the case and they were very interested in it. And, shortly thereafter they decided to take the case, we got the request to the appeals court to vacate in under the 60-day limit.”
Suit Challenges TFR as ‘arbitrary and capricious’
The lawsuit petitions the court to review and vacate the TFR on several legal grounds. “Among other legal defects, the TFR is arbitrary and capricious; in excess of statutory authority; void for vagueness in violation of the Due Process Clause; and in violation of the First Amendment as applied to the use of drones for newsgathering,” it states.
“Petitioner has a substantial interest in the TFR, because Petitioner—who flies drones to gather news, including in settings where DHS mobile assets may be present—faces a credible threat of enforcement and has suffered an objectively reasonable chilling effect on his First Amendment rights.”
The suit is not the first challenge to the FAA’s controversial NOTAM on First Amendment grounds. In January, a coalition of news media associations sent a letter to the FAA, raising questions about the “sweeping and unprecedented” nature of the flight restrictions.
“The TFR seeks to preclude First Amendment-protected aerial journalism within a half-mile of all DHS, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) operations,” the letter stated.
Drone pilots found to be in violation of the restrictions of the NOTAM can face severe penalties including arrest and criminal prosecution, as well as the seizure or destruction of their drone.
Levine said after the issuance of the NOTAM he had voluntarily grounded his drone flights in the city for fear of inadvertently violating the harsh restrictions. Eventually, however he decided to take his drone aloft and see what was going on his neighborhood.
“I told myself, I’m not going to take my expensive drone. I’m going to take my Neo,” he said. “I did consider myself grounded for quite a while, but then I guess I just said ‘I’ve got to do it, even if they arrest me.’”
A spokesman for the FAA, citing a policy regarding ongoing litigation, declined to comment on the suit.
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Jim Magill is a Houston-based writer with almost a quarter-century of experience covering technical and economic developments in the oil and gas industry. After retiring in December 2019 as a senior editor with S&P Global Platts, Jim began writing about emerging technologies, such as artificial intelligence, robots and drones, and the ways in which they’re contributing to our society. In addition to DroneLife, Jim is a contributor to Forbes.com and his work has appeared in the Houston Chronicle, U.S. News & World Report, and Unmanned Systems, a publication of the Association for Unmanned Vehicle Systems International.
