Appendix III – Considerations Involving UAS-Related
Personal Privacy Rights under Federal and State Law
B-330570 Current Drone Legal Issues Page 7
gathering is not without its First Amendment protections” and that “without some protection for
seeking out the news, freedom of the press could be eviscerated.”
36
Lower courts also have
held there is a right to gather news and information by taking photographs in certain
circumstances, based on Supreme Court precedent that freedom of speech includes a right to
carry out certain “communicative” conduct, that is, conduct intended to communicate a
particularized message or idea for which there is an intended audience.
37
A number of courts
have held this includes “communicative photography” both by the press and the public,
38
such
as filming intended for television or print news
39
and filming of police and other public officials on
public property.
40
The Supreme Court has made clear, however, that there is no First Amendment right to gather
news and information in a way that violates generally applicable civil or criminal laws. In
Branzburg, for example, the Court ruled that “[n]ewsmen have no constitutional right of access
to the scenes of crime or disaster when the general public is excluded,” nor do rights of the
press and other information gatherers “reach so far as to override the interest of the public in
ensuring [the news gatherers are not] . . . invading the rights of other citizens through
reprehensible conduct forbidden to all other persons.
41
36
Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972). The Branzburg Court did not elaborate on what these news-
gathering protections are.
37
See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995); Texas v.
Johnson, 491 U.S. 397 (1989).
38
See, e.g., Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996); Porat v. Lincoln Towers Community Ass’n, 2005
WL 646093 (S.D.N.Y. 2005), aff’d per curiam, 464 F.3d 274 (2d Cir. 2006); Krukowski v. Swords, 15 F. Supp.2d 188
(D. Conn. 1998); Lambert v. Polk County, 723 F. Supp. 128 (S.D. Iowa 1989). See generally Bill Kenworthy,
Photography & First Amendment (Freedom Forum Institute April 2012) and cases cited therein, available at
https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-the-press/photography-first-
amendment/ (last visited Sept. 1, 2020); 2013 CRS Drones Report, supra note 4, at 17-19 and cases cited therein;
Kaminski, supra note 32, at 61-64 and cases cited therein; Marc Jonathan Blitz, James Grimsley, Stephen E.
Henderson, Joseph Thai, Regulating Drones Under the First and Fourth Amendments, 57 Wm. & Mary L. Rev. 49,
80-109 (2015) and cases cited therein.
39
See, e.g., Demarest v. Athol/Orange Community Television, 188 F.Supp.2d 82 (D. Mass. 2002); Lambert v. Polk
County, supra note 38.
40
See, e.g., Smith v. City of Cumming, 212 F.3d 1332 (11
th
Cir. 2000); Fordyce v. City of Seattle, 55. F.3d 436 (9
th
Cir. 1995). The federal appeals courts are not entirely in agreement regarding the right to film police activity, however.
See cases cited in Kaminski, supra note 32; Kenworthy, supra note 38; and Blitz et al., supra note 38.
Some courts have ruled that recreational photography conducted solely for one’s personal use is not constitutionally
protected “communicative photography,” however, because there is no intent to communicate a message and no
identified audience. See, e.g., Porat, supra note 38; Larsen v. Fort Wayne Police Dept., 825 F.Supp.2d 965 (N.D.
Ind. 2010). In addition, as with all constitutionally protected speech, the right to gather news and information by taking
communicative photographs is subject to reasonable restrictions on their time, place, and manner, provided the
restrictions are “justified without reference to the content of the regulated speech, . . . narrowly tailored to serve a
significant governmental interest, and . . . leave open ample alternative channels for communication of the
information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
41
Branzburg, supra note 36, 408 U.S at 681, 684 (citing Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“The right to speak
and publish does not carry with it the unrestrained right to gather information.”), 685, 691-92. See also Cohen v.
Cowles Media Co., 501 U.S. 663, 669-70 (1991) (“generally applicable laws do not offend the First Amendment
simply because their enforcement against the press has incidental effects on its ability to gather and report the news.
. . . [The press] ‘has no special immunity from the application of the general laws. [It] has no special privilege to
invade the rights and liberties of others.’”); Dietemann v. Time, Inc., 449 F.2d 245, 249 (9
th
Cir. 1971) (First
Amendment provides no immunity from “torts or crimes committed during the course of newsgathering”).