Unfair Park from p5 law, provided that commercial purpose wasn’t reporting the news. “Professors, students, employees of in- surance companies, and real estate brokers all appear on this list; journalists do not,” U.S. District Judge Robert Pitman wrote in his decision declaring the law unconstitu- tional and enjoining the state from enforcing it. “As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist.” The law also banned drone images of “critical infrastructure,” which to Texas law- makers included things like gas wells and pipelines. So, hypothetically, under Texas law, a pipeline company could use drones to take pictures of its own lines and use those photos in its marketing materials to investors. If that same pipeline leaked and began spewing oil over the countryside, any news photographer who dared to use a drone to take a picture of the leak could face criminal charges and be sued by the pipeline company. Oddly, the law applied only to drones, which are relatively cheap and readily avail- able. Pictures taken from helicopters, air- planes, hot air balloons, stepladders or tall trees were all OK. This didn’t square with the U.S. Constitu- tion, Pitman ruled. Taking and disseminating images is a form of speech, much the same as taking notes and publishing a news story, and un- der First Amendment law the state can’t choose who is allowed to speak and how. Likewise, Pitman noted, the state is gener- ally barred from picking which content is al- lowed and which is illegal. The law permitted drone images of public property but not private, which meant law enforce- ment would be examining images and look- ing at property lines to decide which speech was allowed and which it would punish. The judge also wrote that the act’s use of the words “surveillance” and “commercial enterprise” were unconstitutionally vague. Jim Hemphill, an attorney for the plain- tiffs, said the ruling clears the way for journal- ists in Texas to use 21st-century technology to advance the public’s right to know. “This is a vindication that this is a legiti- mate way of news gathering that people shouldn’t be afraid of,” Hemphill said. The ruling doesn’t do away with existing privacy protections, he said, so it doesn’t mean “some creeper” can fly a drone up to anyone’s window for a peep inside. It merely extends the same protections given to other kinds of aerial photography to drones. The defendants in the case are Steven McCraw, the director of Texas Department of Public Safety; Dwight Mathis, chief of the Texas Highway Patrol; and Hays County District Attorney Wes Mau. In their own motion for summary judgment, they argued that since none of the plaintiffs had been charged with violating the law, they had no standing to sue. The chilling effect from the threat of criminal charges and civil lawsuits was enough to allow the case to go ahead, the judge ruled. Pappalardo experienced that effect first- 6 6 hand. He got his drone as a Christmas gift and obtained certification to fly it from the Fed- eral Aviation Administration while working at the Observer in 2017 but soon grew wary of using it to take video and photographs for fear of getting afoul of Texas law. “I’ve been very cautious about it,” Pappa- lardo said last Wednesday. “You can fly and be in violation and not know it. … The risk versus reward was just not there.” Now a freelance journalist and book au- thor, Pappalardo said he used his drone to capture images for his upcoming book Red Sky Morning, The Epic True Story of Texas Ranger Company F, but he has avoided us- ing it on news stories that would have ben- efited from the addition of aerial photography. “It’s like a sword they can drop on your head whenever they want,” said Pappalardo, who wrote about his experience getting FAA authorization in a cover story for the Ob- server in March 2017. The defendants also questioned the safety of unregulated drones zipping about. Paul Watler, a Dallas-based lawyer who filed an amicus brief on behalf of Texas As- sociation of Broadcasters and the Reporters Committee for Freedom of the Press, points out that Texas didn’t restrict the use of heli- copters and airplanes for aerial photogra- phy, which presumably would hurt much worse if they fell out of the sky. For that matter, getting beaned by a drone flown by, say, a real estate broker or cop would hurt just as much as one flown by a news photographer. Generally speaking, Watler said, govern- ment efforts to regulate the time, place, manner or content of speech must clear a high bar to overcome the Constitution’s free speech guarantees, and Pitman ruled the state didn’t clear it. But what about privacy? Do we face a fu- ture of unregulated drones overhead, re- cording our every move outdoors, at least when they’re not falling out of the sky? Maybe, but not anytime soon. Watler pointed out that fears about the loss of privacy have arisen in the past when technology brought new ways to gather news, such as photography and broadcast television. The benefit of drones, like other new tech, is that they allow journalists to find creative ways to gather information. Abstract fears about what might happen aren’t enough to outweigh journalists’ First Amendment rights nor the real benefits of low-cost, safe aerial photography in the hands of media. “The republic has survived,” Watler said of new tech in the past, and the defendants failed to show that drones pose a unique, real threat. “In the real world, that hasn’t been an issue.” ▼ CITY COUNCIL JACKHAMMER TIME O SOME SAY DALLAS COULD CATCH UP ON INFRASTRUCTURE BY BUILDING ON SUNDAYS. NOT EVERYONE AGREES. BY JACOB VAUGHN n Sundays in Dallas, you shouldn’t hear the loud clanking of jackham- mers, electric saws and welding ma- chines sounding from nearby construction sites. That’s how the city code is written now, but that could change. Today, construction is limited in Dallas to between 7 a.m. and 7 p.m. Monday through Friday, and from 8 a.m. until 7 p.m. on Satur- days. There are some exceptions, mostly for holidays and emergencies. Generally, though, Sunday is not one of those excep- tions the city code allows. But at last Monday’s Government Perfor- mance and Financial Management Commit- tee meeting, City Council members discussed whether construction work should regularly be allowed throughout the weekends in Dallas. City Council member Cara Mendelsohn, chair of the committee, said the topic came up while discussing upcoming work on DART’s Silver Line Regional Rail Project. In those meetings, Mendelsohn said, they were dis- cussing construction work for the project that would have to take place over the weekend. Some interpreted “weekends” as includ- ing Sunday. Others thought it only included Saturday, like the city code says. To clear up the confusion and determine how the rest of the council feels about allow- ing construction work on Sundays, Men- delsohn brought it to the committee. Although it’s not expressly permitted in the city code, the Dallas’ Department of Public Works said it does allow construc- tions on Sundays when it’s necessary. For example, if a crew is called to do a street repair on Saturday that requires another day’s work, they might be authorized to finish on Sunday. This way, they don’t add traffic delays during rush hour the following Monday. The Department of Public Works said they have to use their discretion. “It’s more on a case-by-case basis,” a representative with the department said. “But that’s more of an exception, as opposed to the rule. The rule is what we mirror in [the city code].” City Council member Gay Willis said she gets complaints from residents in her dis- trict about after-hours construction work. “While most people abide by the rules in District 13, we do have the occasional situa- tions where some construction is taking place outside of that code, and believe me, I hear about it,” she said. Willis said she might not have a problem with Sunday being an exception for some construction work, but making it the norm may be too big of a burden on residents. Others were more open to the idea of al- Dallas considers construction on Sundays. Patrick Michels lowing construction on Sundays, citing Dal- las’ infrastructure and building delays. “I feel like if we’ve got an important public works project … if we need to use Sunday to do it, why wouldn’t we?” City Council mem- ber Chad West said. Earlier in the meeting, the committee was also briefed on the city’s permitting pro- cess, which has led to building delays. “We are extremely behind on infrastructure,” City Council member Adam Bazaldua said. “Time is money.” Bazaldua asked what reasons people had for opposing construction work on Sundays. Mendelsohn answered. “I’ll give you two: one of them is that even God took a day of rest,” she said. “No. 2 is that people are experiencing, especially on a project like the Silver Line, construc- tion literally from sun up at 7 a.m. Monday through Friday to 9 p.m. and then all day Saturday, and they deserve a day to be able to sleep in without pounding next to their house.” City staff is collecting more information on allowing the work on Sundays to be dis- cussed further in about a month. ▼ HOUSING LONG ROAD HOME L DALLAS NEEDS MORE AFFORDABLE HOUSING. ITS LEADERS CAN’T ALWAYS AGREE ON HOW TO MAKE THAT HAPPEN. BY JACOB VAUGHN ast Monday, Dallas City Council mem- ber Cara Mendelsohn broke quorum when she walked out of the Housing and Homelessness Solutions Committee meeting. The meeting ended shortly after. “I have been on boards of directors since I was 14 years old and never done that,” Mendelsohn explained in a social media post after the meeting. “Why now?” She said she did so because an item was up for consideration that she felt needed more time to be considered. Pam Thompson, a program manager with the Department of Housing and Neigh- borhood Revitalization, had just finished telling the committee their recommenda- tions for something called One Dallas Op- tions. It’s an expansion of the city’s >> p8 MONTH XX–MONTH XX, 2014 APRIL 7–13, 2022 DALLAS OBSERVER DALLAS OBSERVER | CLASSIFIED | MUSIC | DISH | MOVIES | CULTURE | NIGHT+DAY | FEATURE | SCHUTZE | UNFAIR PARK | CONTENTS | CLASSIFIED | MUSIC | DISH | CULTURE | UNFAIR PARK | CONTENTS dallasobserver.comdallasobserver.com
