A proposed law requiring people who capture images of livestock animal abuse to hand over those images to police within 48 hours is “constitutionally suspect,” according to state Attorney General Robert Cooper.
If passed into law, the measure could come into conflict with the First Amendment on the basis the bill is too narrowly tailored, poses an unconstitutional prior restraint on expression and puts a burden on news gathering. The measure also raises Fifth Amendment concerns on self-incrimination, according to the opinion released late Thursday.
Although the opinion does not declare the proposed bill unconstitutional, uncertainty over whether the language is legally sound could give the governor pause on whether to let the bill become law or strike it down.
Haslam told reporters last week the constitutionality of the “Livestock Protection Act" — also known by opponents as the “Ag Gag” bill — is a main factor he is weighing. He is under pressure from animal rights advocates to veto the legislation, although farmers stress the legislation is good for the agricultural community.
The bill would require anyone who intentionally records video or photo images showing abuse of livestock animals to report the incident to local law enforcement and submit the unedited images within 48 hours. Violating the law would result in a $50 fine. It does not require other individuals who witnessed the abuse to report to law enforcement.
By singling out people who have intentionally recorded images of animal abuse, Cooper opined that the bill is “underinclusive” by not requiring the same reporting responsibilities of other people who witness or have knowledge of the abuse.
“The underinclusiveness of HB1191’s reporting duty, which applies to recordings but not to other documentary or eyewitness evidence of abuse, creates an issue about whether the government is disfavoring particular persons who seek to communicate by creating recordings of livestock cruelty, rather than pursuing its stated interest in having immediate reporting of livestock cruelty in order to facilitate law enforcement investigations,” read the opinion.
Cooper notes that the language of the bill could also constitute an unconstitutional prior restraint on expression. The bill specifies that “any” copies of the images must be handed over to law enforcement, which is legally the same as “all” copies, which forces the photographer to surrender all images, according to Cooper.
Cooper added it is not clear whether the bill would buck the state’s shield law, which protects working reporters from having to hand over information or the source of information to government officials or bodies. His opinion also states that forcing individuals to give law enforcement unedited images of animal abuse could lead to self-incrimination, such as if the images reveal the individual had trespassed on property.
The governor said he would decide late this week or early next week whether he would veto the bill, sign the measure into law or let the bill become law without his signature. The opinion was requested by Rep. Mike Stewart (D-Nashville).