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AG Opinion: Abuse-Reporting Bill Has Problems

State’s legal counsel says ‘Ag Gag’ measure is ‘constitutionally suspect’

Tennessee’s top lawyer has declared that a controversial measure purporting to prevent animal cruelty is “constitutionally suspect.”

Republican Gov. Bill Haslam has said he wouldn’t decide whether to sign the legislation until after he got state-sponsored legal advice. Attorney General Robert Cooper issued the opinion Thursday.

Cooper and his staff wrote that the much-debated legislation potentially violates principles of freedom of the press and the right against self incrimination. Also suggested in the attorney general’s opinion, written upon the request of Nashville House Democrat Mike Stewart, is that the measure, House Bill 1191, appears not-so-subtly designed to target a particular group — namely, animal rights activists — rather than to address a matter of genuine state concern through a neutral law of general applicability.

Sponsored in the state House by Republican Andy Holt of Dresden and in the Senate by Somerville Republican Dolores Gresham, the bill requires anyone who films or photographs animal abuse “for the purpose of documenting the offense” to hand the material over to unspecified law enforcement authorities within 48 hours. It passed handily in the Senate, but by only one vote in the House of Representatives. Both chambers are controlled by Republicans.

“HB1191’s requirements related to both the reports and the recordings impact speech rights protected by the First Amendment,” concluded the state’s lawyers. “In that regard, there are three potential objections on the validity of the restrictions and requirements contained in HB1191. First, the provisions in HB1191 are arguably underinclusive relative to the governmental interests that the bill seeks to protect. Second, the requirement to provide any recordings to law enforcement authorities could be construed by the courts as an unconstitutional prior restraint. Third, the reporting requirements could be found to constitute an unconstitutional burden on news gathering.”

The “underinclusiveness” objection raised in Cooper’s opinion relates to the scope of the bill. The measure appears to target only those who are looking to document and expose animal cruelty, rather than anyone who films or witnesses animal abuse.

By way of explaining the constitutional red flag raised when the specter of underinclusiveness comes up in a law, Tennessee’s attorney general quotes a 2011 U.S. Supreme Court decision striking down a California effort to ban violent video games. In the high-court’s opinion, penned by Justice Antonin Scalia, “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”

In Tennessee, that’s been a central criticism of the “Ag Gag” bill all along. Opponents rejected claims by the bill’s sponsors that their overriding concern is to stop abuse of animals. Senate Majority Leader Mark Norris, himself an attorney, went so far as to call the measure “a sham bill.”

Cooper, a Democrat, states that “(t)he 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.”

Reached by phone Thursday evening, Rep. Holt said he “respectfully disagrees” with Cooper’s assessment. Holt, a hog farmer from Weakley County, added though that “this argument will not be lost on animal rights. If it’s lost at all, it will be on constitutionality.”

Haslam has until May 15 to sign the bill, veto it or let it become law without his signature.

CORRECTION: An earlier version of this story mistakenly identified the author of the U.S. Supreme Court case referenced as Chief Justice John Roberts.

Amelia Morrison Hipps and Mark Engler contributed to this report.

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