Tennessee Attorney General Bob Cooper has called the state’s pending “ag gag” bill “constitutionally suspect,” and for good reason, as I will explain.
The bill, if passed into law, would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours.
Cooper’s opinion, which was requested by Nashville Rep. Mike Stewart, may well influence Governor Bill Haslam (R)’s decision on whether to veto and/or refuse to sign the bill. Let’s hope that after Cooper’s identification of the numerous constitutional problems with the bill as it now stands, it will be allow to fade away, as it should.
In my April 15th column here on Justia’s Verdict, I opposed ag-gag laws in general, for a number of reasons. In this column, I’ll focus on the Tennessee ag-gag bill, in particular, which I also oppose.
The Tennessee ag-gag bill is simple and easy to understand: It requires anyone who intentionally records evidence of livestock or other animal abuse to turn over all the photographs and/or videos that he or she has taken to “law enforcement authorities” promptly—with promptly here meaning, as the bill specifies, within 48 hours, unless the evidence is collected on a weekend.
Those who flout the law are deemed to have committed a misdemeanor offense, and must pay a $500 fine. Although “other animal abuse” is mentioned in the bill—perhaps to convince voters that this bill might protect their pets—this is really just another measure attempting to ensure that consumers do not learn what really goes on in the ugly slaughterhouses that provide their food.
More than 15,000 people have called or emailed the Governor about the bill, almost all of them urging that he veto it. And celebrity animal lovers such as Priscilla Presley and Carrie Underwood have raised the profile of the movement by joining the anti-ag-gag forces. (Although the Governor has said he won’t be swayed by celebrities’ opinions, some of his constituents surely will, and thus the Governor would be very ill-advised to ignore the celebrities’ views.)
In this column, I’ll comment on Attorney General Cooper’s well-placed qualms about the Tennessee ag-gag law, as he reported them to the Governor.
The Bill Is Underexclusive, and Therefore Discriminatory
To begin, Attorney General Cooper expressed the concern that the proposed legislation is so underinclusive that it “creates an issue about whether the government is disfavoring particular persons.” (Here, Cooper seems to be implicitly referring to animal-rights whistleblowers as the “particular persons” at hand.)
This group is clearly singled out. The proposed legislation, for example, reaches all those who record the abuse of livestock, but not, for example, all those who trespass, or take a job, simply in order to procure other types of damning recordings. Why shouldn’t the proposed law extend to any whistleblower with a camera? There is no good answer.
Of course, all laws are underinclusive in some ways—and often in many ways. No law can address every topic, scenario, or far-flung hypothetical that falls within its scope. Accordingly, a law must be substantially underinclusive in order to be struck down by a court for that reason. But the Tennessee bill is, indeed, substantially underinclusive.
What would the bill look like if it were not so underinclusive? It might look more like the approach that Tennessee takes when the abuse in question is inflicted on children, another potentially helpless group, rather than animals. Tennessee’s child-abuse law requires the reporting of any information on child abuse. That law is very specific about what officials should be notified, and it grants confidentiality to those who are reporting abuse, in order to ensure that fear does not get in the way of justice.
If the animal-abuse laws were the same as the child-abuse laws, they would see animal rights activists as protectors, not violators. Those who documented credible information of animal abuse would be treated as brave witnesses and legitimate private enforcers of the law, and not as criminals, as is too often the case now, across America.
The Bill Imposes a Prior Restraint on Speech
Attorney General Cooper also commented that the requirement that “any” recordings of livestock abuse must be turned over could be interpreted to mean “all” recordings, thus preventing the person who creates the covert video—and/or news media organizations—from subsequently publishing or otherwise using recordings.
On that interpretation, the bill very clearly violates the First Amendment. The rule in America is that a speaker can first speak, or capture images, or write, and then pay the consequences if a court later determines that what was said was defamatory, or that images that were captured constituted a privacy or other violation.
The Bill Restricts Newsgathering
Attorney General Cooper also argued that the bill could be seen as a restriction on “newsgathering,” which some courts have held to be a necessary part of freedom of the press and free expression—and rightly so, since news obviously can’t be disseminated until it has been gathered.
Just a few decades ago, the idea that activists without press credentials or training could mount their own undercover investigations, and then claim First Amendment protection for the results, would have seemed dubious at best. In the age of blogging, however, that idea is part of our daily reality. We are all the press, now.
The Bill Raises Extremely Troubling Fifth Amendment Self-Incrimination Issues
Finally, and perhaps most seriously of all, the Tennessee bill’s requirement that the images the activists procure must be turned over to the authorities could—in some situations—amount to the person who made the covert recordings’ revealing that he or she had engaged in illegal activity, such as trespassing, and thus would effectively violate the individual’s right against self-incrimination under the Fifth Amendment.
This last and most blatant problem with the bill, especially, shows that it was written with no respect for our Constitution at all. There’s only one appropriate response for a bill so callous toward animals, protesters, and the First and Fifth Amendments alike: Veto it.