It goes without saying that Big Meat is a very secretive bunch. They don’t want anyone to EVER pry into their business of just how the sausage is made, and with good reason.
Too often Big Meat finds itself on the losing end of lawsuits ranging from price fixing to worker safety to treatment and welfare of animals and more. The list of wrongdoing is seemingly endless. If any industry needs to be watched like a hawk, it’s Big Meat.
And what’s more hawk-like than to use drones to investigate potential illegal operations of Big Ag in general and Big Meat in particular?
In 2011, North Texas freelancer Brandon Wade was out flying his drone over the Trinity River, and what Wade recorded was shocking. The Oak Cliff based Columbia Packing Company was diverting pig blood into a creek that flowed directly into Trinity River. Wade took the video to the Dallas County authorities who wasted no time taking their own look-see. After the investigation, a grand jury returned 18 indictments against the CPC, including six against CPC owner Joe Ondrusek and family member Donny Ondrusek for tampering of physical evidence.
Ultimately, the Ondruseks prevailed because Dallas County authorities, in a rush to get evidence. trespassed during their initial investigation. Dumb.
But the case became a huge wake up call for Big Meat wishing to keep their operations secret. Big Meat reasoned that drones with cameras must be stopped or else journalists, as well as environmental and animal humane activists, might uncover illegal activity.
The answer? Make flying drones over feedlots against the law.
In 2013, Texas legislature passed the Texas Privacy Act. The act made it a crime if a person “uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance.” The law also provided for civil action, saying a property owner “can bring legal action against a person who captured an image of the property, owner or tenant.” Penalties ranged from $5,000 to $10,000, plus “actual damages” if the image was delivered with malice.
The law had exceptions for numerous industries, but not the media.
Naturally, the media sued. In Natioanl Press Photographers Association v. Stephen McGraw et al., plaintiffs argued the law failed to define what constituted “intent to conduct surveillance,” suggesting it is so vague that it could be construed to include just about any news gathering activities:
“The lack of any statutory Case 1:19-cv-00946 Document 1 Filed 09/26/19 Page 2 of 31 3 definition leaves journalists, citizens, and law enforcement unable to distinguish legal from illegal conduct, thus exposing those using drones for First Amendment-protected activity to potential prosecution and self-censorship.”
Plaintiffs also challenged the Act’s no-fly zone requirement, which prohibited all drone use at an altitude lower than 400 feet above ground level for any proposed above “critical infrastructure facilities.” And — yup — the law named animal feedlots as critical infrastructure facilities.
So no big deal right? Fly the drone above 400 feet. Nope. Federal Aviation Administration regulations make it illegal to fly drones higher than 400 feet above ground level. Plaintiffs argued:
“The No-Fly Provisions separately serve to restrict news gathering activities in violation of the First and Fourteenth Amendments. By restricting the use of UAVs for news gathering purposes, while permitting the use of UAVs for commercial purposes, the No-Fly Provisions single out photojournalists for disfavored treatment and impose upstream restraints on protected speech, in violation of the First and Fourteenth Amendments.”
In its pre-trial brief, Texas argued drones are not protected under the First Amendment:
“Plaintiffs’ position is that the First Amendment protects the right of journalists to conduct unrestricted aerial surveillance of anyone, at any time, and at any place, under the auspices of the First Amendment’s protections on news gathering. But neither the First Amendment right to receive speech nor the First Amendment right to gather news is absolute. Nor does [the First Amendment] guarantee journalists access to sources of information not available to the public generally.”
After more than two years of litigation this past March, a Texas federal judge ruled the Act was flat out unconstitutional. U.S. District Judge Robert Pitman soundly rejected arguments that drones could not be covered by the First Amendment:
“Defendants claim that drone photography cannot be entitled to First Amendment protections because it was not contemplated by the Framers when they drafted the protections for expression and the press. (Defs.’ Mot. Summ. J., Dkt. 65, at 16). But neither did the Framers anticipate photography in any form, much less video or internet communications, all of which are today covered by the First Amendment. Applying the Constitution’s protections to new technological contexts is far from a novel exercise. Indeed, “[c]ourts often must apply the legal rules arising from fixed constitutional rights to new technologies in an evolving world.”…The Court thus finds that Plaintiffs have established that, as a matter of law, use of drones to document the news by journalists is protected expression, and, by regulating this activity, Chapter 423 implicates the First Amendment.”
While certainly a victory for drone operators of all stripes, you can bet the Texas legislature will use Pitman’s ruling to try to craft new drone restriction legislation (and no, you can’t shoot them down.)
Texas could also appeal the ruling to the U.S. Court of Appeals for the Fifth Circuit.
But let’s be clear. Drones are a useful tool in news gathering, both for the media and private citizens. There are currently more than 834,000 drones registered in the United States. All those registrations have gotten the state’s attention and a number have enacted anti-drone laws.
But, Big Meat, here’s a better idea than to try to lobby for laws to keep drones grounded. Don’t break the law. And that goes equally for any outdoor agricultural endeavor. Confined animal feeding operations come to mind. Don’t. Break. The. Law. Then there won’t be anything to see.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.
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