Tenn. ag-gag law might be unconstitutional, according to state atty. general

Rob Tricchinelli | Newsgathering | News | May 10, 2013

An animal cruelty bill passed in Tennessee is “constitutionally suspect” because its provisions on giving footage to law enforcement might be a prior restraint and unconstitutionally burden newsgathering, the state’s top lawyer said Thursday.

HB 1191, known as the “ag-gag” bill, requires any footage of animal cruelty to be surrendered to law enforcement within 48 hours of recording. Supporters of the bill, which was lobbied for by animal agriculture groups, say this surrender provision protects animals.

The bill passed in April and now proceeds to Gov. Bill Haslam (R), who can sign or veto the bill. If Haslam takes no action, the bill becomes law 10 days after it reaches his desk.

Haslam has not taken a public stance on the bill, except to say he was awaiting the attorney general’s report before deciding.

The surrender provision could be a prior restraint on publishing footage taken at farms and slaughterhouses, because it requires “any” united photographs or recordings to be turned over, according to the report from the office of Tennessee Attorney General Robert E. Cooper, Jr.

In practice, if that requires complete surrender of the footage, it would prevent publication of the footage and act as an unconstitutional prior restraint, the report said.

The report also said the bill could conflict with newsgathering privileges, and “it is not clear” whether the bill conflicts with Tennessee’s shield law for reporters.

Media groups have opposed the Tennessee bill and others like it because of the potential for interference with newsgathering and First Amendment rights.

“The real purpose of the law is to stifle investigations of animal abuse or poor and unhealthy conditions for farm animals,” said Bruce VanWyngarden, editor of the alt-weekly Memphis Flyer. “It might [be] better termed a ‘First Amendment Gag’ law, since it’s intended to deter activist organizations and the media from reporting on offensive or illegal corporate farming methods.”

“If the Ag Gag bill happens to pass and the News Sentinel records images of animal cruelty, we will not consider ourselves bound to turn those images over to law enforcement,” wrote Jack McElroy, editor of the Knoxville News Sentinel. “We will assume that the shield law, and more importantly, the First Amendment, will pre-empt such a law.”

The surrender provision could violate a person’s Fifth Amendment right against self-incrimination, the report said, if the person recording the footage is also the one responsible for the treatment of the animals.