The battle over domestic drone use just got a little hotter.

This week, a number of media companies, including The New York Times and The Associated Press, accused the Federal Aviation Authority of violating the First Amendment.
In a brief filed with the National Transportation Safety Board (NTSB), the group of 16 media outlets argued that the current FAA rules, which do not allow commercial drone use, are too wide-ranging and have had a “chilling effect” on newsgathering. The NTSB is the administrative “court of appeals” for any FAA action.

“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 stated.

The brief was filed in support of Raphael Pirker, a drone operator and filmmaker who was fined $10,000 after he flew a small drone to record aerial footage of the University of Virginia for a promotional video in 2011.

In March this year, however, a NTSB judge threw out the fine against Pirker with the argument that the FAA doesn’t have the legal authority to impose or enforce its ban on small drones. The FAA immediately appealed and still has this note posted on its website: “There are no shades of gray in FAA regulations. Anyone who wants to fly an aircraft—manned or unmanned—in US airspace needs some level of FAA approval.”

Pirker, a 29-year-old Austrian who now lives in Hong Kong, told CJR for a recent cover story that he is not against safety regulations—what he objects to is the FAA’s blanket ban.

“These issues are very important to the broader question of whether we want to be world leaders in this amazing technology, or watch as the world around us moves forward,” said Brendan Schulman, Pirker’s lawyer and himself a drone hobbyist.

The FAA has been tasked, too, by congress to come up with new regulations to govern domestic drone use by the end of the year.

However, as the FAA draws up new safety rules, those will have implications for journalists and things could get “tricky,” media lawyer Nabiha Syed told CJR recently. For example, a requirement to get pre-approval before flying would make covering breaking news virtually impossible. Similarly, visual “line of sight” requirements would make it tough to cover forest fires or other events that require a safety distance.

Like smartphones, drones are cheap and easy to operate with a remote control. The popular DJI Phantom quadcopter costs less than $500 on Amazon and, carrying a simple GoPro camera, becomes a flying recording device for gathering images and other data.

And drones have already been used on several occasions in the US to document the news. Last week, a storm chaser in Arkansas used a drone to record the havoc wreaked by a tornado. (According to Forbes, the FAA is looking into the case.)

And earlier this spring, drone footage brought in by freelancers or citizen-journalists was used by news organizations to cover the aftermath of a gas explosion in Harlem and a blaze at a recycling plant in Brooklyn respectively. A spokesman for the FAA told CJR that the agency is investigating both the Harlem and Brooklyn cases.

Matthew Schroyer, creator of the website DroneJournalism.org and a founding member of the Professional Society of Drone Journalists, says he applauds the media companies for filing the brief. “There’s a frustration that hobbyists can do what a journalist wants to do, but once you do it for a commercial reason, it’s not legal,” he said.

Schroyer, however, points out that this is not just a federal issue but a debate taking place across the country. So far, nine states have enacted legislation regulating the use of drones, though for different reasons. In some states, such as Connecticut, legislation is intended to protect the privacy rights of individuals. In other states, including Florida, Illinois, Montana, Oregon, and Tennessee, concern centers on making sure law enforcement officials don’t overreach. In Texas, meanwhile, legislation protects landowners from the aerial gaze of environmentalists or animal rights groups.

Schulman, the lawyer for Pirker, says that he is surprised that the press hasn’t paid more attention to the issue. “Last summer, two pioneering journalism schools were forced by the FAA to cease their instructional use of small hobby-style drones, resulting in the cancellation and disruption of academic programs,” Schulman said. “If our schools aren’t permitted to teach our students how to safely and ethically use these new technologies, where are we going with this as a country?”

According to the Associated Press, the other media organizations participating in the challenge include: Advance Publications Inc., Cox Media Group, Gannett Co., Gray Television Inc., Hearst Corporation, The McClatchy Company, the National Press Photographers Association, The National Press Club, the Reporters Committee for Freedom of the Press, the Radio-Television Digital News Association, Scripps Media Inc., Sinclair Broadcast Group Inc., the Tribune Company, and The Washington Post.

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Louise Roug is a writer and occasional editor based in New York. Follow her @louiseroug.