A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
Judicial: First Amendment
In Nat’l Press Photographers Ass’n v. McCraw, No. 1:19-CV-946-RP, 2022 WL 939517 (W.D. Tex. Mar. 28, 2022), the court considered whether a Texas law that imposed civil and criminal penalties on unmanned aerial vehicle (UAV) image creation violated the First Amendment. The law imposed civil and criminal penalties if a UAV operator captured images of private real estate with the “intent to conduct surveillance” on that private property in the image. The law exempted certain uses of UAVs but did not exempt news gathering. Plaintiffs argued that the surveillance provisions were unconstitutional and content and speaker based because the law prohibited or allowed the use of UAVs depending the purpose or content of the image. There were also no-fly provisions that imposed criminal penalties on those who flew UAVs over critical infrastructure, which included animal feeding operations among other things.
The court first looked at whether UAV photojournalism was protected by the First Amendment. The court did find that drones used to document the news by journalists was a protected expression of speech and implicated the First Amendment. The court then looked at what the appropriate level of scrutiny to apply under the First Amendment. The court found that the laws were both content -based restrictions that regulated based on the subject of the expression and were subject to strict scrutiny. The surveillance provisions required the enforcing official to inquire into the contents of the image to determine whether it was prohibited. The no-fly provisions made the legality of the images based on their purpose. The court also found that the surveillance provisions were separately subject to strict scrutiny because they also discriminated on the basis of the identity of the speaker.
The court then analyzed whether the provisions survived a strict scrutiny analysis. In order to survive strict scrutiny, the law had to be narrowly tailored to serve a compelling state interest. The court found that the state failed to establish that alternative means were insufficient to accomplish the laws purpose of protecting private property, individual privacy, and the safety of critical infrastructure was. The court held that the laws were not actually necessary to achieve any interests identified by the government. The court also found that the law was overinclusive and overbroad because they unnecessarily restrict protected expression. In addition, the court also stated that the laws were underinclusive based on the allowed uses of UAVs that posed the same risks of drone journalism. The court held that because the provisions were not actually necessary or narrowly tailored that they did not withstand strict scrutiny and violated the First Amendment. In addition to the other First Amendment violations, the court also held that the laws were violated the 14th Amendment and were void for vagueness because of the use of the term’s “surveillance” and “commercial purposes.”
The court ordered that Texas was enjoined from enforcing Tex. Gov’t Code §§ 423.002, 423.003, 423.004, 423.0045, 423.0046, and 423.006.
REGULATORY: NOAA, USDA
COMMODITY CREDIT CORPORATION
Final rule amending the Emergency Assistance for Livestock, Honey Bees, and Farm-raised Fish Program to assist producers with the cost of transporting feed to livestock intended for grazing and the cost of transporting livestock intended for grazing to feed. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Notice announcing that NOAA/NMFS has received a request from Virginia Electric and Power Company doing business as Dominion Energy Virginia for authorization to take marine mammals incidental to marine site characterization surveys off of Virginia in support of the Coastal Virginia Offshore Wind Commercial Project. Info here.
Notice announcing that NOAA/NMFS has issued an incidental harassment authorization to the U.S. Navy to incidentally harass marine mammals during activities associated with the Multifunctional Expansion of Dry Dock 1 at Portsmouth Naval Shipyard, Kittery, Maine. Info here.
UNITED STATES DEPARTMENT OF AGRICULTURE
Notice announcing that the Rural Business-Cooperative Service is accepting fiscal year 2022 applications for the Rural Cooperative Development Grant program, subject to the availability of funding. Info here.