A Minnesota-based journalist this month filed what appears to be the first legal challenge against a controversial FAA temporary flight restriction (TFR) that bans drones from flying near U.S. Department of Homeland Security (DHS) ground operations.
In a petition filed with the U.S. Court of Appeals for the District of Columbia Circuit, independent photojournalist Rob Levine argued that the TFR is unconstitutional and has effectively chilled aerial newsgathering. Issued in January via notice to airmen (NOTAM), the restriction covers DHS “mobile assets” including “vessels and ground vehicle convoys and their associated escorts,” citing national security concerns.
The restriction has raised free speech and other constitutional concerns among civil liberties groups, news organizations, and others, who wonder how uncrewed aircraft systems (UAS) operators are meant to comply with a constantly shifting TFR that does not appear on the FAA’s Low Altitude Authorization and Notification Capability (LAANC) or B4UFLY services.
The News Media Coalition—which includes the publishers of major newspapers such as the New York Times and Washington Post and image gathering services such as Getty—in January called the TFR the “most sweeping prohibition on UAS activity across the United States ever imposed.”
“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,” read a statement from Alex Garcia, president of the National Press Photographers Association, which argues the restriction violates the First and Fifth Amendments.
Attorneys with the Reporters Committee for Freedom of the Press who are representing Levine similarly argued that the TFR is unconstitutional due to its vagueness and chilling effect. Those who violate it could face fines, prison time, or the loss of their drone or Part 107 remote pilot certification.
“Drones have helped photojournalists capture powerful perspectives that a reporter on the ground can’t,” Levine said in a statement. “But these restrictions force drone pilots to choose between not gathering the news and risking criminal charges, massive fines, or a career-ending revocation of their right to fly. That’s unacceptable.”
What the TFR Does
The restrictions around DHS assets, implemented in January, put drone pilots in a jam.
The TFR penalizes UAS operations within 3,000 feet laterally and 1,000 feet vertically of DHS operations, including roving convoys of Immigrations and Customs Enforcement (ICE) agents.
Airspace restrictions can cover mobile assets. Air Force One, for example, usually travels within a 30 nm TFR, like a giant bubble. But the FAA typically tells drone pilots exactly where they can and cannot fly, helping them avoid inadvertent violations. Not so in this case.
“If you see a federal agent via a drone, you’re more than likely violating national security airspace,” Brandon Youngblood, former head of the FAA Air Traffic Organization’s UAS Security and C-UAS Integration office—which crafted the NOTAM that January’s TFR replaced—wrote on LinkedIn. “This essentially just shut down Minneapolis, and other cities’ airspace with federal agents dispersed throughout the city. There is no way for the FAA to populate these restrictions on a map without highlighting the exact position of federal agents.”
According to Youngblood, the original TFR was designed to cover naval vessels operating in U.S. coastal waters and Department of Energy assets moving nuclear materials—it was “never meant to cover all DHS ground assets which are literally everywhere,” he wrote.
The TFR is not only pervasive but punitive. It requires cases to be automatically referred to the FAA’s chief counsel for legal action.
“There are no more warning letters—meaning your first offense could result in criminal charges, civil penalties, the seizure of your aircraft, and fines,” said The Pilot Institute’s Greg Revediau.
Beyond journalists like Levine, industry groups such as the Commercial Drone Alliance (CDA) took issue with the TFR, which could impact drone deliveries, inspections, and photography, as well as law enforcement drone as first responder (DFR) programs.
“The Commercial Drone Alliance is inquiring with federal regulators to ensure authorized commercial and public safety drone operators have the information they need to remain compliant, but in the meantime, operators should be aware of these new restrictions and plan accordingly,” the CDA said in a statement.
Will It Hold Up?
Levine’s petition argues that “among other legal defects, the TFR is arbitrary and capricious; in excess of statutory authority; void for vagueness in violation of the Due Process Clause; and in violation of the First Amendment as applied to the use of drones for newsgathering.”
Levine’s core argument is that the TFR violates the fair notice provision of the Constitution’s Due Process clause. Per Cornell Law, “when the government acts in such a manner that denies a person of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker.”
Essentially, the contention is that reporters and other drone operators were not given adequate notice of where the TFR applies.
They also had no opportunity to provide feedback, such as through the FAA’s notice-and comment-process, in which it publishes proposed rules in the Federal Register. That, Levine argues, violates the federal Administrative Procedure Act, which requires agencies to publish notices of proposed rulemaking and open them to public comment.
“Because there is no means of verifying in advance whether DHS vehicles—such as unmarked cars driven by Immigration and Customs Enforcement agents—are operating in a given location, the practical consequence is that drone pilots nationwide cannot know whether a flight will expose them to liability,” the petition reads. “The predictable result has been to burden and discourage all drone flights, along with a grave chilling effect on the use of drones for newsgathering in particular.”
Dawn Zoldi, the CEO of P3 Tech Consulting and publisher of Autonomy Global, wrote in January that there are a few legal avenues to challenge the TFR.
If the restriction de facto covers all UAS operations, the government could argue it is “content-neutral,” or tied to a time, place, and manner rather than a specific message. But if it is enforced selectively—such as by restricting news drones while permitting delivery drones—more litigation should be expected, Zoldi wrote.
If a court accepts the latter argument, it could require the government to show a compelling need for the TFR and prove it is using the “least restrictive” methods possible. But that’s no guarantee.
“It would not surprise me if the court concludes that the NOTAM is facially neutral rather than content-based, notes the lack of a concrete enforcement record, and punts the harder constitutional questions to a future ‘as-applied’ challenge,” Zoldi told FLYING. “We saw something similar in the RaceDayQuads [v. FAA] case and its Fourth Amendment claims.”
In that case, RaceDayQuads sued the FAA over its requirement for UAS to equip remote identification systems that broadcast their position, speed, and other data, arguing that GPS tracking is unconstitutional. It was rejected by the U.S. Court of Appeals for the D.C. Circuit—the same court with which Levine filed his petition.
Another argument offered by the News Media Coalition is that the TFR infringes on the First Amendment rights of news organizations to acquire aerial footage, when collecting it on the ground is not possible.
“Nearly every federal court of appeals has recognized the First Amendment right to film law enforcement performing their duties,” it said in January.