First in Flight, Tops in Tech, Ascendant in UAS: Drones and North Carolina

The next time you go for a long hike in a national forest with no cell phone service, you might want to take a drone with you so that you can send for help when you break your leg, dehydrate, and need help.

While you, as a non-commercial drone “hobbyist” or “modeler,” might—emphasis on might—not violate any state or federal law if you were to send a drone to facilitate your rescue, the same cannot be said for many other potential drone operators.  In fact, law enforcement in some states may not be able to send a drone to determine your specific location or provide you with medication, food, or water—Hunger Games style—because such activity could violate nascent state laws and regulations governing “surveillance.”  And the FAA has made clear that commercial drone use is generally not permitted at this time.  While UAS enthusiasts might wish to believe that the FAA’s position is in flux after the National Transportation Safety Board (“NTSB”) determined that the FAA could not impose a $10,000 fine on an individual in connection with his use of a drone to take photos of, and subsequently sell them to, a college campus the FAA has appealed the NTSB decision signaling that, for now, the FAA is holding firm to the prohibition.

But while the FAA considers how to adopt an appropriate regulatory regime to govern the use of drones for commercial purposes, a great deal of activity is underway at the state and local level.  Numerous state legislatures across the country have been considering—and in some instances adopting—bills to limit the use of drones by law enforcement, government agencies, and other entities and persons.  North Carolina, for example, has convened a Study Committee to consider whether the time is ripe for UAS legislation and, if so, what the contours of such legislation should be.  In fact, draft legislation will be the subject of discussion at the Study Committee’s final meeting in April.

At a minimum, newsgatherers of all stripes need to be mindful of and involved in state and local legislative activity that may restrict the use of UAS for newsgathering purposes.  It is not hard to understand how and why the potential invasion of privacy implicated by overzealous UAS use would capture the imaginations of legislatures everywhere, but UAS use is in its infancy, and even well-meaning legislation could hinder development of UAS applications.

While it is relatively easy to understand the privacy concerns and potential Fourth Amendment implications of drone use by law enforcement and other government organizations, it is equally easy to understand the tremendous potential presented by commercial UAS use.  North Carolina has the potential to be the epicenter of the drone industry and could be viewed as a center for development of commercial (and non-commercial) drone applications and activities.  The NextGen Air Transportation Center is headquartered at North Carolina State University, North Carolina has a variety of climates and topography in which to test and study drone use, and the state is home to numerous technology companies.  Moreover, as recently as 2012, Raleigh was recognized as a top city for tech jobs.  Even though the FAA may have declined to select any location in North Carolina as a UAS test site, North Carolina is fertile ground for UAS ascension.  All UAS stakeholders need to pay attention now to ensure that North Carolina remains fertile ground for drone development.


Fourth Circuit Reverses $5 Million Funeral Protest Verdict

In late September, the United States Court of Appeals for the Fourth Circuit reversed on First Amendment grounds a $5 million jury verdict against infamous Kansas preacher Fred Phelps and other members of his Westboro Baptist Church.

The claim against Phelps and his church members arose from their protest activities at the March 2006 funeral of Lance Corporal Matthew Snyder, a U.S. Marine who was killed in Iraq. At Snyder's funeral in Westminster, Maryland, Phelps and other protesters held up a variety of offensive signs decrying gays, Catholics, and Americans generally.  Members of the church also posted an essay on the church's Web site called "The Burden of Marine Lance Cpl. Matthew A. Snyder."  The essay contained numerous statements indicating that Snyder was a sinner and was going to hell.

Snyder's father did not actually see the protests or essay until after the funeral was over, but said that when he did, he was traumatized.  He filed suit in June 2006 in federal court claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  While the district court granted summary judgment to the defendants on the defamation and publicity given to private life claims, after trial on the other three claims, the jury awarded Snyder $2.9 in compensatory damages and $8 million in punitive damages.  The district court lowered the punitive damages award to $2.1 million, but the defendants appealed the entire award as violative of the First Amendment.

The Fourth Circuit, with Judge King writing for the court, not only reversed the award of damages, but elected not to remand the case to the district court at all, holding instead that "[n]otwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web postings] are constitutionally protected."

Though the defamation claim was not at issue, the case law cited by the court was borrowed largely from the Supreme Court's defamation pantheon, most notably Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).  Citing Milkovich, Judge King wrote: "First, the First Amendment serves to protect statements on matters of public concern that fail to contain a 'provably false factual connotation.'"

Second, Judge King wrote, again citing Milkovich, "rhetorical statements employing 'loose, figurative, or hyperbolic language' are entitled to First Amendment protection to ensure that 'public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.'"

With these principles in mind, the Fourth Circuit held that the district court had "failed to assess whether the pertinent statements could reasonably be interpreted as asserting 'actual facts' about an individual, or whether they instead merely contained rhetorical hyperbole."  The court then examined each of the specific signs and the statements at issue from the Web site, and held that they were fully protected by the First Amendment either because they could not reasonably be read to state actual facts or because they were plainly hyperbolic and figurative.

In response to Westboro Baptist's odious activities, a number of states have passed laws sharply limiting, or banning altogether, protesting at funerals. 

FCC Fines Broadcast of Telephone Conversation without Prior Notice

The FCC today issued an order finding a broadcaster apparently liable for a $4,000 fine for broadcasting telephone conversations without giving prior notice of its intention to do so.   This order provides some important lessons for reporters who may want to incorporate actual telephone conversations into their broadcast packages.

Television and radio stations, as FCC licensees, are subject to a rule prohibiting the broadcast of telephone conversations without prior notice.  Section 73.1206 provides:

Before recording a telephone conversation for broadcast, or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of the licensee’s intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be broadcast.

In finding the broadcaster liable for a fine under this rule, the FCC rejected the station's argument that the notice requirement embodied in the rule could be disregarded because the person recorded was a public official.

Although this rule is most commonly implicated by radio on-air personalities who broadcast telephone conversations with listeners who call in, it may affect reporters as well.  If, as part of your news story, you want to include all or a portion of a telephone conversation you had with a source, you must be sure to inform your source that you may broadcast the conversation before you begin recording.  Thus, it would violate the rule to start recording without the source's knowledge and then, once you obtain a quote you would like to use in your story, belatedly ask the source for permission to broadcast the conversation.

It is important to recognize that this rule applies only to telephone conversations.  It does not affect your ability to broadcast surreptitious recordings of in-person conversations, for example as part of investigative pieces.  Your ability to make or use those recordings will be governed by state and federal wiretapping statutes, as well as the common law of invasion of privacy.  Thus, while it may well be that in certain states a reporter will be within his or her rights to record a telephone conversation without the consent of the other party to the conversation, the reporter may may not broadcast the recording over the air.

When Does an Interview Constitute Intrusion?

Although North Carolina does not recognize certain invasion of privacy claims recognized in some states, its courts have adopted the claim of invasion of privacy by intrusion. Unlawful intrusion is:

an intentional physical or sensory interference with, or prying into, a person’s solitude or seclusion or his private affairs, where the intrusion is highly offensive or objectionable to a reasonable person.

Examples of conduct that North Carolina courts have found constituted unlawful intrusion include physically invading a person’s home or private place, eavesdropping by wiretapping or microphone, peering through windows or doors and persistent telephoning. Potential liability for intrusion may therefore place some limits how far journalists go in reporting a story or attempting to interview a source.

A person may not maintain an intrusion claim if he or she consents, at the time of the alleged intrusion, to being photographed, recorded or videotaped. Thus, the failure to obtain consent, when combined with surreptitious recording at a private location, may expose reporters to liability.

For example, one case involved a reporter who arrived at the subject’s house with no prior notice, and, when an adult answered the front door, the reporter began asking him questions. During the interview, the reporter wore a hidden microphone in his necktie, while a cameraman and sound technician hid in a van across the street. The subject had not agreed to be interviewed in advance and at no time during the interview did he consent to being recorded. On these facts, a federal appeals court in California concluded that the subject could maintain an intrusion claim.

The law in North Carolina does not expressly require parental consent to interview a minor in a public forum or to publish or air a minor’s image in connection with a news story. However, even if a minor consents to being interviewed at their home, a reporter is not necessarily protected from liability for intrusion. For example, in a case out of California a television film crew appeared unannounced at the front door of a private residence. Two young children, ages five and seven, answered the door and purportedly consented to being interviewed after the news crew informed them that their friends had just been murdered by their friends’ mother. The court ruled that the children, because of their young age, lacked the capacity to consent to the news crew’s presence on the private property, and, therefore, did not consent to the subsequent interview.

In addition to being mindful of potential intrusion claims and issues of consent, journalists and editors should also be aware that courts generally consider public school property to be a “non-public forum.” This designation means that the federal Constitution will permit reasonable local or state regulations that restrict media access to school property or that otherwise restrict newsgathering activities on school property, so long are those regulations are designed to lessen interference with normal school activities. These permissible restrictions may even extend beyond school grounds, so long as they apply to a school-sponsored activity such as a sporting event, a field trip or a graduation ceremony. More information about access to public school property is available in from The Reporters Committee for Freedom of the Press and from David M. Herszenhorn.