Minnesota Photojournalist Sues FAA Over Rule Banning Drones Near DHS Assets

A Minnesota photojournalist and press freedom advocates are suing the Federal Aviation Administration over a recently issued rule banning drone flights within 3,000 feet of Department of Homeland Security buildings and vehicles.

“You have no way of knowing in advance before you fire up the drone whether you are within a prohibited distance of, say, an unmarked car that ICE is using for immigration enforcement,” said Grayson Clary, a staff attorney at Reporters Committee for Freedom of the Press, which is representing independent photojournalist Rob Levine in the case challenging the rule.

On Jan. 16, while Operation Metro Surge was in full swing in Minnesota, the FAA issued a nationwide temporary flight restriction, known as a TFR, banning drones from flying within 3,000 feet laterally and 1,000 feet vertically of Department of Defense, Department of Energy and DHS “facilities and mobile assets, including vessels and ground vehicle convoys and their associated escorts.”

News organizations immediately pushed back. A coalition of media organizations including the New York Times, Washington Post and the National Press Photographers Association sent a letter to the FAA on Jan. 28, arguing that the flight restrictions violate the First and Fifth Amendments of the U.S. Constitution.

The press photographers’ association warned its members that lawful newsgathering could quickly become criminal.

“A moving, effectively invisible TFR, applying to unmarked or rented vehicles creates a constantly shifting restricted airspace that journalists have no practical way to identify or avoid,” NPPA President Alex Garcia said in the press release.

Clary said the situation creates a chilling effect on journalists’ exercise of the First Amendment.

“Which, candidly, I think, is likely what was intended,” Clary said. He also argues that the rule violates a fundamental portion of the right to due process — fair notice of what the law prohibits.

Levine, the plaintiff in the case, has run into FAA restrictions around newsworthy events before. In 2016, when the FAA issued a TFR around the protests at Standing Rock in North Dakota, Levine was the only journalist to receive an exemption, allowing him to document the events from the air.

The new restrictions for drone flights near DHS operations has made him think twice before taking out his drone.

“Seeing how these federal agents treated constitutional observers, I was truly worried that going out and flying, I could get arrested, have my drone destroyed, and be roughed up, like they did to so many of those constitutional observers,” Levine said.

The petition for judicial review was filed Monday in the U.S. Court of Appeals for the District of Columbia.

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