Drones are really having a moment these days, as everyone from backyard hobbyists to CEOs of major corporations have started to integrate drones into everyday life. However, the law surrounding the unmanned, hovering aircraft is still developing.
Think twice, then, before you send a drone out to collect evidence. A federal court in Connecticut ruled that stopping the use of a drone to record the site of a major auto accident does not violate First Amendment rights to free speech and the press.
Pedro Rivera, a journalist who was off the clock, heard of the accident on a police scanner, proceeded to the scene and sent his drone out to do its thing -- recording the events from 150 feet above. After he was stopped, his employer, a local TV station, was contacted, resulting in the station suspending Rivera for a week. Rivera sued, alleging that the officers' actions deprived him of his freedom of speech, in refusing to let him film, and freedom of the press, in urging his employer to suspend him.
Sorry Journalists, No Right to Film the Police
As for his First Amendment claims, the court found that there was no recognized right to record police activity. While other circuits have split on the issue -- there is such a right in the First, Seventh, Ninth and Eleventh circuits -- the Second has never addressed the question, meaning that there could be no clearly established right as needed for the officers to waive their qualified immunity.
The district court also went out of its way to note that, had Rivera even been in a jurisdiction which protected the right to film police activity, he may have fallen outside the scope of those protections. He wasn't standing by with a camcorder, after all, but sending "a flying object into a police-restricted area ... effectively trespassing onto an active crime scene." Similarly, because there was no constitutional violation, the court dismissed Rivera's retaliation complaint, as you cannot retaliate against the exercise of a right that doesn't exist.
Call to Employer was Prior Restraint
It wasn't all bad news for Rivera. Though the court dismissed almost all of his claims, it found that he had plead a sufficient case to show an unconstitutional prior restraint. The officer's contact with Rivera's employer, in which he threatened to withhold the "goodwill" of the department, operated as a restraint on his right to work as a member of the press.