State attorney general calls 'Ag Gag' bill 'constitutionally suspect'

Thursday, May 9, 2013 at 5:50pm

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).  

5 Comments on this post:

By: Left-of-Local on 5/10/13 at 10:05

Good to see the Democrats keeping this crooked administration in check, even through its own appointees. Nice one!

By: pipecarver on 5/10/13 at 12:00

Ever reported animal cruelty to law enforcement? The response is either,
A) "Sure....we'll get right on that." (ie. It's not my job).
B) "Call Animal Control." (ie. An overwhelmed, completely understaffed group of individuals, with limited powers to do anything but issue a $50 "slap on the wrist" citation in Environmental Court with "Referee (insert name here)."

To get Animal Control's attention requires citizens to spend a great deal of time gathering evidence. People doing this sort of thing know the laws, know they are in violation of the law, and know how to avoid problems. Let's face it...do you honestly believe that Bubba is just going to let you waltz into the place with a camera....thus ruining his chances of glorious fame and fortune? Not hardly.

Save yourself the agrivation. Film it, post it on YouTube, and send the link to every news reporting agency OUTSIDE the State of Tennessee. It'll get someone's attention.

When enough of the country sees what's going on, they will stop visiting certain destinations of known animal cruelty (ie. South of Nashville and North of Alabama). When the money stops flowing in, and Bubba is no longer able to continue with his quest for world domination, he'll assume his position back on the couch watching Reality TV...watching re-runs of himself.

By: pipecarver on 5/10/13 at 12:27

Besides....Gov. Haslam's a wimp, and rarely vetoes any bill. Everyone knows he'll just let it sit on his desk, with the ever growing number of other bills he refuses to sign. This one action (or lack thereof) allows it to become law....and, once again, Gov. Haslam shirks his responsibility to DO HIS JOB.

Once a trustee, always a trustee...

By: Ask01 on 5/11/13 at 4:08

Once again, our illustrious, or should that be 'illustrated' governor, since he is so two dimensional, will hunker down, hold up a finger to check the wind direction, then flip a coin before making a decision.

The primary aim of the bill in question is obviously to protect those who feel hampered by laws and statutes dictating the manner in which they treat animals. Once images of animal abuse are turned over, I'm certain law enforcement will be compelled to act to avoid criticism. Those guilty will know they have a leak, perhaps even the source, and act to close or silence the source.

This bill needs to be vetoed.

By: pswindle on 5/12/13 at 7:53

If it helps his buddies to sign the bill, he'll sign it . Anything to help the family and friends. As I have said from day one, if it benefits my family and friends, I'll sign it. When we find out what has happened in TN since he became Governor, I hope it is not too late to change it. I hope he is out of office before he does away with the inheritance tax. That will hurt the state more than anyone can even think of, but his family can live free on the taxes of the average worker.