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Governor Vetoes ‘Ag-Gag’ Measure

From the Office of Tennessee Gov. Bill Haslam, May 13, 2013:

NASHVILLE – Tennessee Gov. Bill Haslam released the following statement regarding HB 1191/SB 1248:

“Agriculture is the No. 1 industry in Tennessee. Farmers play a vital role in our state’s economy, heritage and history. I understand their concerns about large scale attacks on their livelihoods. I also appreciate that the types of recordings this bill targets may be obtained at times under false pretenses, which I think is wrong,” Haslam said.

“Our office has spent a great deal of time considering this legislation. We’ve had a lot of input from people on all sides of the issue. After careful consideration, I am going to veto the legislation. Some vetoes are made solely on policy grounds. Other vetoes may be the result of wanting the General Assembly to reconsider the legislation for a number of reasons. My veto here is more along the lines of the latter. I have a number of concerns.

“First, the Attorney General says the law is constitutionally suspect. Second, it appears to repeal parts of Tennessee’s Shield Law without saying so. If that is the case, it should say so. Third, there are concerns from some district attorneys that the act actually makes it more difficult to prosecute animal cruelty cases, which would be an unintended consequence.

“For these reasons, I am vetoing HB1191/SB1248, and I respectfully encourage the General Assembly to reconsider this issue.”

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Liberty and Justice NewsTracker

AG Opinion: Abuse-Reporting Bill Has Problems

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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Featured Liberty and Justice NewsTracker

Critics Call on Guv to Veto ‘Ag-Gag’ Bill

Opponents of so-called “ag-gag” legislation held a media event Monday at the Tennessee State Capitol, calling for a veto from Republican Gov. Bill Haslam.

The bill, sponsored in the state House by Andy Holt, R-Dresden, and in the Senate by Somerville Republican Dolores Gresham, requires anyone who films or photographs animal abuse to hand the material over to law enforcement within 48 hours. The Legislation passed both chambers last week.

Supporters contend that the measure is meant to encourage whistleblowers to come forward and stop illegal treatment of animals as quickly as possible. Critics, however, argue that it is actually an industry protection law, created to stop journalists and animal rights groups from gathering enough evidence to prove cases of continuing abuse.

The event Monday included Knoxville Democratic state Rep. Gloria Johnson who characterized the bills as a “special-interest power grab” that “gives industry the power to avoid transparency.” She said it “undercuts America’s First Amendment right to gather and share information.”

Wayne Pacelle, the president of the Humane Society of the United States, also spoke to reporters and screened a campaign-style ad the group is running in Nashville and Knoxville TV markets urging viewers to contact the governor and push for a veto.

Bill sponsor Andy Holt told TNReport on the legislative session’s final day last week that after discussing the measure with Haslam, he’s confident that it would become law. He also defended the intentions behind the legislation, charging that the Humane Society of the U.S. was demonizing it to raise money.

“The truest intent of this bill is to protect animals — especially from ongoing investigations like we’ve seen many times in the past from HSUS,” Holt said. “This is a radical animal activist group that raises literally hundreds of millions of dollars.”

“HSUS uses instances of animal abuse as a basic mode of revenue-generation. They don’t want to end animal abuse,” Holt continued. “It seems to me that they want to discover and investigate animal abuse but they want to do that for a profit to themselves”

Unlike many other contentious issues that made it through the General Assembly during the recent session, debate on the animal abuse bill didn’t follow partisan lines. A handful of Democrats in the House voted “aye,” allowing it to eek by with a razor-thin margin of 50-43; One vote less and it would have failed for lack of majority.

Meanwhile, some Senate Republicans were amongst those strongly decrying the law before it passed 22-9. Majority Leader Mark Norris was one such detractor who voted no, describing the proposal as “just a sham bill.”

“It’s not designed to prevent animal abuse,” the Collierville senator told TNReport. “It’s designed to prevent the filming of animal abuse and that doesn’t do anything to combat animal abuse at all.”

Publically, at least, Gov. Haslam has said he hasn’t made up his mind about the legislation yet.

“It’s not one that, quite frankly, was really high on my radar screen so I hadn’t paid a lot of attention to it until this week,” Haslam told reporters April 18. “I’ve had proponents and opponents tell us their reasoning and we’re going to do some homework.”

Once the bill is delivered to the governor, he has 10 days to sign the bill into law or veto it. He can also choose to do nothing in which case the bill will become law following that 10-day period.