A feverish debate in Tennessee over a law that would compel people with video of alleged animal cruelty to hand a copy over to police has set off a debate about wider First Amendment issues.
Lawmakers in Tennessee have passed a Livestock Cruelty Protection Act and sent it on to the state’s governor, Bill Haslam, to sign or veto. The measure is similar to laws in at least nine states.
Haslam asked state attorney general Robert Cooper for an opinion on the act’s constitutionality, and Cooper’s 10-page report raises some broad issues.
The law would compel anyone shooting video of alleged animal cruelty to give a copy of it to law enforcement within 48 hours, or face a misdemeanor charge and a possible fine.
Supporters of Tennessee’s proposed law say it will help officials fight against animal cruelty; protect public safety; and aide investigators as they try to determine when the incidents happened—and if video released by organizations or news gatherers is outdated or edited.
The bill passed by a 50-43 margin in the state House, and a 22-9 margin in the state Senate.
Opponents have labeled it an “Ag-Gag” law and an attempt to curb the activities of animal rights groups (who are undertaking prolonged investigations) and advance the interests of livestock owners. Celebrity Carrie Underwood is among the opponents of the law.
Attorney General Cooper’s opinion from Thursday was that the bill is “constitutionally suspect” on at least three grounds. In addition, Cooper has fears that the law could violate a person’s Fifth Amendment right to protection against self-incrimination.
One of the three grounds listed by Cooper has broad implications: “[The] reporting requirement could be found to constitute an unconstitutional burden on news gathering.”
Cooper points out that the First Amendment protects against burdens on news gathering and “while this principle has been recognized primarily in the context of the press, it has also been acknowledged that the concept of news gathering is very broad and can encompass a wide scope of activity outside what is recognized as the traditional press.”
Supporters of the bills say the crux of their argument is that the law should protect a right to privacy.
While journalists have a right to shoot video, they also are restricted by state laws as to where they can record, especially in areas where the public doesn’t normally have access.
Related Link: Learn more about privacy and consent laws
"At the end of the day it's about personal property rights or the individual right to privacy," said Bill Meierling, a spokesman for the American Legislative Exchange Council, in a statement to the Huffington Post. "You wouldn't want me coming into your home with a hidden camera."
Others argue that act poses First Amendment problems for journalists, assuming they've obtained video under the consent and privacy laws in their states.
“The First Amendment protects an independent press because the Founders understood that freedom of the press is a logical extension of the basic freedom of speech and is vital to keeping government power in check,” said Knoxville News Sentinel editor Jack McElroy in an April editorial.
“Freedom of the press means anyone can be ‘the press.’ In this era of websites, blogs and tweets, there are no practical barriers to self-publication, either," says McElroy.
And in a USA Today editorial, Ken Paulson from the First Amendment Center wonders how Upton Sinclair, the famous muckraking journalist who covered the meat packing industry in his novel The Jungle, would deal with the laws.
But he also makes an important point about state laws already on the books that should protect livestock owners from unwanted intrusions by photographers.
“State laws bar trespassing, so farm owners already have a means to keep activists off the premises. And if any videos are used to actually libel a business—meaning that the video is untrue or significantly misleading—there are other recourses in the courts,” he says.
However, whether citizen journalists understand state privacy and consent laws is another matter.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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