UAS “Freedom of the Press! First Amendment!” Not!!

Some of the biggest names in news and broadcasting joined the fight over whether Raphael Pirker should be fined $10,000 for “carelessly and recklessly” operating his UAS at the University of Virginia in 2011.  Media heavyweights, including the Associated Press, Cox, Gannett, Hearst, McClatchy, The New York Times, Chicago Tribune, and Washington Post, banded together to file an amicus brief  in the ongoing appeal to the National Transportation Safety Board.

The media raised a number of issues surrounding the intersection between the First Amendment and the FAA’s ongoing ad hoc regulation of UAS’s used for business purposes.  According to the brief, while the media are some of the largest businesses in the country, they are engaged in “news gathering” rather than business.  Accordingly, they believe a third type of classification should be created for them that splits the difference between the UAS hobbyist and the UAS commercial operator.

Someone standing outside the legal maneuvering might be left scratching his or her head after reading the brief.  The confusion would not necessarily come from the merits of the arguments the media raises, which are all valid points.  The intersection between the First Amendment, privacy interests, and public safety is probably going to create one of the most difficult balancing acts the FAA has faced.  Rather, the confusion would be “why did the media even file the brief at all?”

None of the issues raised in the brief have anything to do with the case in front of the NTSB. Mr. Pirker was not a journalist.  He was not engaged in news gathering.  Mr. Pirker did not try to sell the video the news media.  In fact, the ALJ never once mentioned the First Amendment in his opinion.  Because the First Amendment issues were not raised below, the NTSB will never reach them.

The answer, of course, is that the NTSB is not the real audience for the brief.  The actual purpose of the brief is to put the FAA on notice that if these huge media interests are unhappy with the FAA’s final UAS rules, it will be an all-out fight with no punches pulled.  In this age of wall-to-wall coverage of the disaster du jour, the media wants to be able to make extensive use of UAS’s to provide continuous video where cameramen cannot go.  Any technology which can fill the 24 hour-a-day content void is a “must have” for the media, and now the FAA can have no doubt that the media will fight to get it.

(Originally posted May 20, 2014)

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