Drone Journalism: Media Groups Raise First Amendment Concerns

The rise of unmanned vehicles to generate journalism is an exciting development for the media industry—but one that flies in the face of Federal Aviation Administration (FAA) regulations.

But with federal rules on the devices’ use for commercial purposes still up in the air, a number of major media companies and journalist trade groups say one thing is not up in the air: freedom of speech. More details:

The issue at play: While the FAA is looking to eventually allow the use of unmanned vehicles under certain circumstances (and is running tests to inform rulemaking), drone enthusiasts have in numerous cases jumped the gun ahead of formal regulations—particularly in journalism, where unmanned vehicles can help gather information more cost-effectively than can other aerial devices. But until formal rules are in place, the FAA says, such uses are unauthorized. In February, the agency said in a statement that the rules are clear-cut. “There are no shades of gray in FAA regulations,” the agency wrote  (opens in a new tab). “Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval.”

Recent examples: But in several cases, journalists have forged ahead. Last month, Brian Emfinger, a storm chaser and videographer, used an unmanned vehicle  (opens in a new tab) to cover the aftermath of the damage caused by a tornado in Arkansas for local television station KATV. That video gained nearly 3 million views on YouTube and drew an FAA investigation. An incident in Hartford, Connecticut  (opens in a new tab), around the scene of a fatal car crash drew an FAA investigation of its own this year. And the agency recently wrote to the Drone Journalism Lab  (opens in a new tab) at the University of Nebraska-Lincoln journalism school advising that the program was operating drones without authorization and saying the devices must be flown indoors only.

The media industry reacts: This week, media organizations weighed in formally, filing a legal brief in the case of Raphael Pirker, an unmanned vehicle enthusiast fined $10,000 by the FAA for using a device to shoot a promotional video. A court overturned the fine  (opens in a new tab), and the agency appealed. In their brief  (opens in a new tab), the groups—led by the Associated Press and including large companies like The New York Times Co. and trade groups like the National Press Photographers Association and the Radio Television Digital News Association—argued that the FAA’s prohibition on use of unmanned vehicles in news gathering violates the First Amendment. “The FAA’s position is untenable as it rests on a fundamental misunderstanding about journalism. News gathering is not a ‘business purpose’: It is a First Amendment right,” the brief states  (opens in a new tab). “Indeed, contrary to the FAA’s complete shutdown of an entirely new means to gather the news, the remainder of the federal government, in legislation, regulation, and adjudication, has recognized that, in the eyes of the law, journalism is not like other businesses.”

A scene from videographer Brian Emfinger’s drone-shot footage of the aftermath of an Arkansas tornado. (YouTube screenshot)