Future Tense

Up in the Air

The free-speech problems raised by regulating drones.

Photo by Stan Honda/AFP/Getty Images
Coraline Vialette prepares to catch a Parrot Minidrone Jumping Sumo during a demonstration on June 10, 2014, in New York. For legal purposes, should we treat a drone with a camera as a camera, or an aircraft?

Photo by Stan Honda/AFP/Getty Images

In August, the Federal Aviation Administration granted a 12-day no-fly zone in Ferguson, Missouri, citing safety concerns. But tapes recently revealed that local authorities sought the ban in large part to keep away news helicopters. On Monday night, again citing safety concerns, the FAA again closed Ferguson airspace. Only law enforcement aircraft may fly in the area; media aircraft can operate only above the no-fly zone at 3,100 feet.

These FAA actions are connected to an ongoing battle related to drone regulation and free speech. Though it may not be intuitive, the FAA’s Ferguson bans show that aircraft regulation can involve freedom of expression. There is a First Amendment right of some kind to take photographs and video. Both the scope of this right and its nature are debatable. The right might protect newsgathering, it might protect the infrastructure necessary for communication, or it might protect photography as a necessary precursor to protected speech. But one thing is clear: Aircraft help gather information that often isn’t accessible by other means. So regulation of newsgathering aircraft can raise First Amendment problems.

Drones can potentially make such oversight cheaper and more accessible to more people. A small drone can run a couple of hundred dollars. But while the monetary cost is relatively low, the regulatory cost is fairly high. The FAA currently allows hobbyist (noncommercial) drone use, but forbids commercial drone use. It doesn’t take much—just a sale—for drone photography or videography to be considered commercial drone use.

The FAA is getting closer to proposing rules to govern commercial drone use, the Wall Street Journal reported Monday. The proposed rules could be revealed as early as the end of this year. But even once that happens, the full process of making the regulations permanent could take one to two years. In the meantime, the FAA will continue to regulate commercial drones the way it has been: by permitting just a few commercial entities to use drones, while other operators are banned.

There are clear drawbacks to this approach. Many argue that both the delay and the anticipated regulations will stifle innovation and potentially hurt American competitiveness in an emerging and potentially lucrative field. But the current haphazard drone regulation could also raise a less expected problem—a First Amendment one.

Current FAA drone permit policy looks suspiciously discriminatory, or at least significantly ad hoc. In late September the FAA effectively permitted six commercial companies to use drones to film and take photographs. But other commercial uses of drones remain banned—which means, despite pervasive disregard of this rule, that commercial photographers using unmanned aerial vehicles to snap wedding photos and other images are operating illegally. The FAA permits some information gatherers but not others.

Last year Raphael Pirker, a drone pilot, challenged the FAA’s ability to fine him for recklessly operating a drone. The Pirker case was at its heart about whether the FAA’s current system of apparently haphazard regulation is permissible. If it is not, drones could go unregulated until formal rules are put in place. On Nov. 17, the National Transportation Safety Board affirmed that the FAA has the freedom to exempt certain kinds of unmanned aircraft from enforcement (which it has done for noncommercial hobbyist drones), and to enforce against other drone use, like Pirker’s. So the NTSB refused to rein in the FAA’s current discretionary decision-making by creating a distinction between “aircraft” and “model aircraft” like drones.

Thus until general rules are adopted over the next year or years, the FAA is firmly in the business of drone licensing. After the NTSB holding, the FAA appears to have a lot of freedom in what it can do. As the permits granted in September show, drone licensing can effectively be the same thing as photography licensing. And that’s where the First Amendment problem may lie.

Supreme Court cases explain that the First Amendment requires special restrictions on licensing or permitting regimes. For example, the standards for granting permits for parades or for newspaper vending machines cannot be too vague or give too much unsupervised authority to a government official. There are two reasons for these restrictions: Timid speakers might self-censor if they have to face a vague permitting process, and government officials might use a licensing process to discriminate against certain speakers under the guise of official discretion. Thus if a licensing scheme touches on First Amendment activity, the regulation must provide “narrowly drawn, reasonable and definite standards” to guide the official’s decision. In other words, the law must be more specific than usual, to reduce the possibility that an official will use the permitting process to hide discrimination. Congress’ message to the FAA to figure things out on the safety front may be too broad to meet the First Amendment standard for licensing laws.

In the Pirker case, News Media Amici, which represented newspaper and magazine publishers and television companies, suggested that the First Amendment should restrict the FAA’s ability to regulate drones haphazardly. The brief decried the FAA’s current “ad hoc” enforcement process, and suggested that the First Amendment requires clear and formal rulemaking. The NTSB refused to address the speech issue, explaining in a footnote that First Amendment problems are outside the scope of its review. Still, the question remains: Should the First Amendment restrict the FAA’s ability to regulate drones ostensibly for safety purposes? The FAA thinks it’s just governing drone safety, while the News Media brief suggested that the FAA is governing speech.

Every law may govern speakers, but not every law governs speech. And not every discretionary licensing regime is similar enough to parade permitting. Speakers are subject to all kinds of general laws: building permitting, labor requirements, the tax code. Parades are special because they’re expressive activity. The Supreme Court has clarified that the First Amendment does not give a speaker the blanket power to “challenge as censorship any law involving discretion.” To be subject to First Amendment licensing requirements, the law “must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of censorship risks.”

Parade permits have a “close enough nexus to expression.” Building permits do not. Where on this spectrum is the governance of drones? Is a drone like a camera, or a helicopter, or both? Asking whether the First Amendment applies to the FAA’s authority is really asking what the social meaning of drones is. And for now, the NTSB says the answer is: They’re aircraft. The fact that drones carry cameras does not make them cameras themselves.

But this does not mean that FAA regulation is immunized from all First Amendment challenges. An individual likely can’t challenge the general vagueness of drone regulations, but she can still claim that the FAA has in fact violated the First Amendment in its treatment of her drone use in particular. That individual will have to do more work to show that the FAA has taken advantage of the flexibility in the law to discriminate against her, using the law “as applied.” But it’s not hard to imagine the as-applied scenario playing out favorably for a plaintiff, especially given recent examples of how the FAA has used its authority.

The FAA banned news media aircraft in Ferguson in August, and again this Monday. For the first ban, there’s evidence that law enforcement specifically wished to target the media. A flight ban targeting news media raises significant First Amendment problems. In October, the FAA issued a security notice (a NOTAM, or Notice to Airmen) that drone pilots may not fly near any stadium that holds more than 30,000 people when it’s hosting an MLB, NFL, or NCAA Division 1 football game, within one hour before or after a scheduled event. The ban also applies to NASCAR and IndyCar races. Despite the fact that the notice never mentions filming or photography, it clearly targets individuals who want to film major sporting events. The FAA may have good, substantial safety reasons for issuing this notice, but it also clearly targeted a particular type of content: the unauthorized filming of sports games. Authorized broadcasters are permitted, as long as they have an approved airspace waiver. Using flight bans to favor one speaker over another also raises First Amendment concerns.

The idea that First Amendment challenges to the FAA’s authority must be made case by case will make some unhappy. There have been repeated calls for the FAA to issue clear rules permitting and governing commercial drone use. The FAA is now far behind its statutory deadline for getting those rules into place, even if it is now moving forward on rulemaking as the recent Wall Street Journal article suggests. So some look to the First Amendment as a solution, to force the FAA to move away from ad hoc decisions and immediately create clear rules. But using the First Amendment to restrict the FAA’s authority might not produce the results drone enthusiasts want.

The First Amendment requires that Congress (or other lawmakers) restrict the discretion of government officials by giving them clear guidelines. A requirement of clear legal guidelines, however, restricts the ability of officials to experiment with different policies—because they have to follow the guidelines rather than freely experiment. In fact, under the First Amendment, a total ban might be preferable to experimentation, because experimentation can produce rules that favor certain speakers. And a total ban is likely not what drone enthusiasts want, either.

Congress gave the FAA the authority to allow some drones as an interim policy, before the general rules are in place, precisely to encourage experimentation. The current policy might not be ideal, but the FAA is using its commercial drone exception process to test rules that others will eventually have to follow. The detailed rules that the permitted film companies are now following are likely the model for those rules that the FAA will eventually propose. You can disagree with the substance of the rules, but the fact that several companies have to operate under them first will provide more information for evaluating how effective—or ineffective—they are.

In the meantime, the FAA faces an odd situation. Accustomed to regulating aircraft, the FAA is encountering concerns about free speech. This is the strange new world we’re entering, as our objects increasingly become information gatherers. How we navigate the intersection of speech concerns with safety concerns for drones may dictate our policy for many new technologies to come.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.