The McCraw Drone Decision and Its Limits
Published
Analysis of a 2024 decision; certiorari denied. Law checked through October 18, 2026.
Ancient commanders learned that holding the field after a battle settled only that battle. The next campaign began on different ground. National Press Photographers Association v. McCraw is that kind of victory for Texas: decisive on the field where it was fought, and silent about the fields beyond.
The plaintiffs, journalists and press organizations, challenged Chapter 423 of the Government Code, which restricts using a drone to capture images of people and private property and bars flights at low altitude over critical infrastructure, correctional and detention facilities, and sports venues. In 2022 a federal district court held the provisions facially unconstitutional and enjoined their enforcement. The Fifth Circuit reversed. Its substituted opinion of January 10, 2024, 90 F.4th 770, held that the no-fly provisions are "flight restrictions, not speech restrictions" and do not implicate the First Amendment. It treated the surveillance provisions as regulating a means of image capture to protect privacy, applied intermediate scrutiny, and upheld them against the facial challenge. It rejected the claim that federal aviation law preempts the statute, noting that federal law contemplates concurrent state regulation. The Supreme Court denied review on October 7, 2024 (No. 23-1105).
The 2025 Legislature left the challenged provisions as they were. Senate Bill 2569 changed only the reporting rules for law-enforcement drone use in ยง 423.008.
The opinion itself marks its frontier. The court said its holding does not foreclose all First Amendment and due process challenges to Chapter 423, and it allowed that a party might succeed in an as-applied challenge. A journalist prosecuted for a particular flight, on particular facts, would fight on new ground.
Limits
This insight analyzes a 2024 decision and is not a report of a new development. The Fifth Circuit's ruling binds federal courts in Texas, Louisiana, and Mississippi; Texas state courts may follow it but are not bound by it on federal questions.
Sources
- Opinion
- Cert. denied, No. 23-1105
- Tex. Gov't Code ch. 423
- Acts 2025, 89th Leg., R.S., ch. 884 (S.B. 2569)