AG Says ‘Ag Gag’ Bill is ‘Constitutionally Suspect’

State Attorney General Bob Cooper said Thursday that a so-called “ag gag” bill is “constitutionally suspect,” an opinion that may figure into Gov. Bill Haslam’s pending decision on whether to veto the bill.
The bill (HB1191) requires anyone “intentionally” recording evidence of livestock abuse to turn over all photographs and videos to “law enforcement authorities” promptly – within 48 hours unless the evidence is collected on a weekend. Violations would be a misdemeanor crime subject to a $500 fine.
Haslam said earlier this week that he wanted to see the opinion, requested by state Rep. Mike Stewart, D-Nashville, before deciding whether to sign the bill into law, veto it or let it become law without his signature.
“The governor is reviewing the opinion. He has said he anticipates having a decision by early next week,” said David Smith, spokesman for Haslam.

Haslam’s deadline for a decision on the bill is next Wednesday. More than 15,000 people have called the governor or sent emails on the bill, almost all of them urging a veto. Critics include several celebrities – with Priscilla Presley joining in the criticism on Thursday.
Cooper’s 10-page opinion says bill raises constitutional issues on at least four fronts and there are arguments and counter-arguments on all of them insofar as how a court might interpret the proposed new law and its various provisions. (Note: Full text available HERE.)
Reasons the bill is “constitutionally suspect,” according to the opinion:
-The scope of the proposed new crime is so limited – or “underinclusive” in his legal terminology – that it “creates an issue about whether the government is disfavoring particular persons”– those recording abuse of livestock, not other animals, and doing so “intentionally.”
This contrasts with state law requiring reporting of any information on child abuse, which applies to everyone, is specific about what officials should be notified and grants confidentiality to those reporting abuse.
Thus, the opinion says, the bill might not pass “strict scrutiny” muster as narrowly tailored to meet the stated objective of stopping animal abuse promptly by requiring prompt reporting.
-The requirement that “any” recordings of livestock abuse be turned over could be interpreted to mean “all” recordings, thus preventing the person making them – or news media organization – from subsequently publishing or otherwise using them.
“Accordingly, HB1191 could be held to be a presumptively unconstitutional prior restraint on expression (under the First Amendment),” the opinion says.
–The bill could be seen as a restriction “news gathering,” which some courts have held to be a necessary part of freedom of the press and free expression.
“While the State has a significant interest in preventing cruelty to livestock, Branzburg (a leading court decision) leaves room for a challenge that the means chosen do not bear an appropriate relation to that goal,” the opinion says.
–The bill could amount in some situations to the person making recordings revealing that he or she had engaged in illegal activity, such as trespassing, and thus violate the individual’s rights against self-incrimination under the Fifth Amendment.

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