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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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Liberty and Justice

‘Ag-Gag’ on Guv’s Desk; AG Yet to Opine

Rep. Mike Stewart, who voted against the so-called “ag-gag” bill, is still waiting for an Attorney General’s opinion on the constitutionality of the legislation, which arrived on Gov. Bill Haslam’s desk only just at the end of last week.

Haslam has until May 15 to veto it, sign it or let it become law automatically without his endorsement.

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 month.

Even though the bill passed the House on April 17, its last hurdle in the General Assembly, the speakers of the two chambers did not sign it until May 1.

Kara Owen, deputy chief of staff for communications and policy for House Speaker Rep. Beth Harwell, said it was a logistics issue. She said it was not uncommon when there are so many bills that pass the last few days of the session for there to be a delay in having them engrossed and sent to the proper speaker’s office for his or her signature.

On the day the bill passed the House, Stewart, a Democrat, asked for a state attorney general’s opinion “to see if it violates the first amendment as it relates to freedom of the press and how it will affect the proprietary rights to their work product such as video or photographs taken as part of the undercover investigation.”

As of Tuesday morning, no opinion had been issued by Attorney General Robert Cooper’s office. However, the Nashville legislator’s assistant Delano Brent said she did receive an email from the AG’s office that stated an opinion could be issued by Friday.

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.

Holt told TNReport on the legislative session’s final day 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.”

Rep. Susan Lynn, a Republican, voted against the bill saying it violates free speech and that it criminalizes those who are seeking to stop animal abuse. On the day of the House vote, Lynn said the bill “is coercion by government of the worst kind.”

Lynn said she talked to Haslam before the last session and asked him to wait before signing it until the Attorney General opinion had come back.

The Mt. Juliet representative also noted that the bill did not go through the House Judiciary Committee after the criminal statute was added to it as an amendment in the House Agriculture and Natural Resources Committee. She said that move was wrong.

Opponents to the bill include lawmakers on both sides of the aisle, the HSUS, as well as celebrities like Carrie Underwood, Emmylou Harris and Ellen DeGeneres. On Friday, members of the Clergy for Justice faith community delivered a letter to Haslam urging him not to sign it.

Last week, the governor said he had not made up his mind how he will proceed with the legislation. He said he sympathizes with farmers, while also understanding the arguments against it.

While the bill passed in the Senate 22-9, it passed in the House 50-43-2 on a razor’s edge. One vote less and it would have failed for lack of majority, making an override of a veto unlikely.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.

John Klein Wilson contributed to this story.

 

 

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Liberty and Justice NewsTracker

Controversial Livestock Abuse Legislation Passes House, Goes to Governor

After almost two hours of debate, a contentious livestock-abuse reporting bill cleared the state House of Representatives Wednesday with the minimal vote necessary for a chamber majority, 50-42-2.

The legislation requires individuals who record cruelty to livestock to submit those unedited images to law enforcement within 48 hours or face being charged with a Class C misdemeanor.

Tennessee Code Annotated defines livestock as “all equine as well as animals which are being raised primarily for use as food or fiber for human utilization or consumption, including, but not limited to, cattle, sheep, swine, and goats.” The bill does not apply to dogs, cats or chickens, although some argued it should.

Passage in the House was a hard-fought battle on the part of House Bill 1191 sponsor, Rep. Andy Holt, who has argued from the beginning that the purpose of the bill is stop animal abuse as soon as possible.

“How long do you think an animal should have to suffer before the perpetrator is brought to justice?” the Republican from Dresden asked in his closing remarks before the vote. “I particularly believe we should bring that individual to justice as quickly as possible. Others, who oppose this bill, feel like four, five, six months is appropriate, and I completely and wholeheartedly disagree.”

Holt said nothing in the bill would prohibit a person investigating a suspected livestock abuse situation from continuing that investigation after he had turned in the video tape or photographs of the first incident recorded.

Delaying law enforcement while individuals or animal rights groups built cases through continued documentation of abuse was only one argument against the bill, which was bipartisan in its criticism.

The most contentious argument came from Republican Rep. Vance Dennis, who argued that the bill is “unenforceable because you can’t arrest someone for the crime you’re creating.” 

“You cannot arrest for a fine-only misdemeanor. You can cite for not coming to court, but if the person doesn’t come to court, you have no means of enforcement, “ said Dennis, an attorney from Savannah.

Rep. Susan Lynn, R-Mt. Juliet, argued that by attaching a criminal offense to the legislation, “This bill is coercion by government of the worst kind.”

Other arguments raised in the House were much the same as those raised in the Senate on Tuesday, where the legislation passed 22-9, with four Republicans joining five Democrats in voting no.

Senate Majority Leader Mark Norris brought an amendment that would have rewritten the bill and would have required “any person who has knowledge of or observes” an animal being abused to report it to law enforcement immediately.

However, Senate Bill 1248 sponsor Sen. Delores Gresham moved successfully to kill Norris’ effort, which was tabled on a 17-10 vote.

“Obviously, it’s not the attempt of the sponsor of the bill to make every citizen who might find themselves in a situation where they might observe this to make them a criminal. But indeed that’s essentially what this bill does,” said Gresham, a Republican from Somerville, about the Norris amendment.

Norris, a Republican from Collierville, shot back, “Either you’re opposed to animal abuse or you’re not, and that’s why this amendment is designed to get to the root of the problem. The sponsor says she doesn’t want to criminalize animal abuse in general, just the filming of it. If you see abuse, you need to report it, whether you’re filming it or not.”

Sen. Charlotte Burks, D-Monterey, rose in support of the bill because, “As a farmer, I’ve got livestock, and sometimes people don’t understand the proper handling of livestock. … It could be misunderstood and it could waste a lot of our DA’s time.”

Sen. Bill Ketron, R-Murfreesboro, again cited the link between those who commit animal abuse at an early age and those who commit child and/or spousal abuse as an adult.

Equally as passionate in favor of the bill, Sen. Mike Bell, R-Riceville, expressed outrage at the United States Humane Society for holding the video of soring of a Tennessee walking horse in Collierville for four months before releasing it in May 2012.

Amelia Morrison Hipps may be reached at amhipps@downhomepolitics.com, on Twitter @DwnHomePolitics or at 615-442-8667.