Are the Proposed Bills to Prevent Photos of Farms Legal?

Florida and Iowa recently have considered bills to make it illegal to photograph farms without written permission of the owner.  The NPPA Advocacy Committee blog has the details here for Iowa and here for Florida. So are these bills constitutional?  Probably not.

A similar issue arose in the case of U.S. v. Stevens.  Stevens, a resident of Virginia, was convicted of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.  Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct.  It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,”18 U. S. C.§48(c)(1).

Background of the Stevens case is available in my 7/23/09 blog entry. On appeal, Stevens argued that the statute is unconstitutional.  The case went all of the way to the U.S. Supreme Court.

On April 20, 2010, the U.S. Supreme Court found that the statute is overbroad and, therefore, invalid.  The complete opinion of the Court is available here.  Essentially, when a statute is overbroad, it regulates substantially more speech than is allowed by the Constitution.  In other words, while a law may be drafted to prevent certain behavior, it’s overbroad when it also, in effect, it prevents behavior that is legal.  As the Supreme Court explained:

“. . . §48 applies  to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the . . . wounding . . . or killing took place” there, §48(c)(1).  Depictions of entirely  lawful conduct may run afoul of the ban if those  depictions later find their way into States where the same conduct is unlawful. This greatly expands §48’s scope, because views about animal cruelty and regulations having no connection to cruelty vary widely from place to place.  Hunting is unlawful in the District of Columbia, for example, but there is an enormous national market for hunting-related depictions, greatly exceeding the demand for crush  videos or animal fighting depictions.  Because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) applies to any magazine or video depicting lawful hunting that is sold in the Nation’s Capital.  Those seeking to comply with the law face a bewildering maze of regulations from at least 56 separate jurisdictions . . . .

[T]he Government nowhere extends these arguments to other depictions, such as hunting magazines and videos, that are presumptively protected by the First Amendment but that remain subject to §48. Nor does the Government seriously contest that these presumptively impermissible applications of §48 far outnumber any permissible ones. The Court therefore does not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. Section 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

The Florida and Iowa bills apparently arose from efforts to keep animal advocates from exposing certain farming operations, illegal conduct, or safety concerns.  The Florida bill was revised to apply only to those who enter “onto a farm or other property . . . [and] produces audio or video records without the written consent of the owner or an authorized representative of the owner.”  But existing trespassing laws should address these concerns.  This bill seems superfluous.  The written consent also seems a bit overkill but the rest of the bill likely now passes Constitutional muster.

The Iowa bill makes it a crime for a person to “[p]ossess or distribute a record which produces an image or sound occurring at the animal facility which” is a “reproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio medium” without the consent of the owner.  As with the Stevens case, this bill regulates substantially more speech than is necessary and impinges Constitutional free speech rights.  So while Iowa may pass this bill, it likely go the way of the statute in the Stevens case and be declared invalid.

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