PHOTOGRAPHY & THE LAW: New Laws Have Significant Impact
Posted by Mickey H. Osterreicher — 11 Mar 2012
Farm by Jean-Francois Dupuis
A growing number of states have been proposing and enacting new legislation ostensibly intended to protect farm businesses from outside interference but could have significant impact on Photography/Recording.
Dubbed "ag-gag" bills for the way in which they gag media coverage of agricultural operations, these laws criminalize certain activities such as recording an image of, or sound from, an agricultural operation; obtaining access to or employment at an agricultural operation under false pretenses; possessing or distributing such recorded images and sounds; and photographing or recording farm activities without permission.
These "feel-good" bills have been introduced in a number of states including but not limited to: Indiana (SB 184), Florida (SB 1184/HB 1021), Minnesota (HF 1369/ SF 1118), Missouri (SB 695), Nebraska (LB 915), Illinois, Iowa, Utah, and New York (see below for these).
The Illinois Judiciary Law Committee just tabled HB 5143, and in Florida the Senate Agriculture Committee and House Criminal Justice Subcommittee removed a provision from SB1184/HB 1021 that they believed violated free speech.
But Iowa recently enacted such a measure, making "Agricultural production facility fraud" a crime punishable in escalating degrees with penalties ranging from fines and restitution to imprisonment. Under HF 589 a person is guilty of violating the law if he "willfully . . . obtains access to an agricultural production facility by false pretenses;" lies on an employment application in order to gain access to the facility with the intent to "commit an act not authorized by the owner . . . knowing that the act is not authorized."
This law is far different from the bill originally proposed (which specifically prohibited recording, possessing and distributing images and sounds from an animal facility without the consent of the owner), but as enacted is still broad enough to chill First Amendment protected activities.
A similar bill passed by the Utah state senate last week. HB 187 "establishes the crime of agricultural operation interference" and provides that a person is guilty of such crimes if, without proper permission and under certain circumstances, he "record[s] an image of, or sound from, the agricultural operation." The legislation also provides increased penalties for trespassing when a person is found guilty while also engaged in presumptive free speech activities such as photography.
Cows, Barn and Silos by Andrea Petersen
In New York, S5172 would "amend the agriculture and markets law, in relation to unlawful tampering with farm animals" by criminalizing "unauthorized video, audio recording or photography done without the farm owner's written consent."
What is of heightened concern is that the bill as written is so broad as to include photography and recording made from public property of "any building, structure, vehicle, pasture, paddock, pond, impoundment area, land or property upon which farm animals are housed, cared for, grazed or bred." A resulting misdemeanor conviction could be "punishable by a term of imprisonment for up to one year or a fine of up to one thousand dollars."
While many groups, including NPPA, have objected to these bills, it is believed that the opinion by the Supreme Court in U.S. v. Stevens, striking down a federal law which criminalized the commercial production, sale, or possession of depictions of animal cruelty as unconstitutional under the First Amendment, has been the underlying reason for subsequent changes to the "ag-gag" bills.Photographers should also be aware of other recent legislation that could make them subject to arrest and prosecution. Illinois HB 5099 would prohibit "use of a wireless telephone while operating a motor vehicle within 500 feet of an emergency scene (defined as "a location where an authorized emergency vehicle . . . is present and has activated its oscillating, rotating, or flashing lights")." An exception to the law would be if the device was being operated in hands-free mode or being used to call police.
Cop Car by Kate Jackson
The bill also "adds digital photographs and video to the definition of 'electronic message' in provisions prohibiting the use of electronic communication devices while operating a motor vehicle." This would effectively mean that any Illinois laws banning the use of those devices for making phone calls, sending emails and texts or surfing the web while operating a motor vehicle (which could include "standing," "stopping" or being parked) would now also prohibit using that device to take photos or record video.
A more favorable bill has been proposed in Connecticut. An Act Concerning the Recording of Police Activity by the Public, S.B. 245,
provides that "a peace officer who interferes with any person taking a
photographic or digital still or video image of such peace officer or
another peace officer acting in the performance of such peace officer's
duties shall . . . be liable to such person in an action at law, suit in
equity or other proceeding for redress." While the bill also contains
limitations and exclusions, if enacted it would allow citizens to sue
police or bring criminal charges against them for interference. The
legislature is currently holding hearings on this measure.
HR 347 also known as The Federal Restricted Buildings and Grounds Improvement Act of 2011 was signed into law on March 8, 2012, making it a federal offense to cause a disturbance at certain events. More specifically, anyone who trespasses on specified property or at times and locations "so restricted in conjunction with an event designated as a special event of national significance" may be prosecuted and subject to a fine or imprisonment or both.
THE PRESIDENT by Kevin Barron
this "Trespass Bill" anyone "knowingly" entering a restricted area
under Secret Service control who "engages in disorderly or disruptive
conduct" or "who, with the intent to impede or disrupt the orderly
conduct of Government business or official functions, obstructs or
impedes ingress or egress to or from any restricted building or grounds;
or knowingly engages in any act of physical violence against any person
or property in any restricted building or grounds; or attempts or
conspires to do so, shall be punished" accordingly.
As the election primaries continue and with the upcoming NATO Summit and national political conventions, it is not hard to imagine that citizens and journalists may be threatened, interfered with and arrested under this statute while doing nothing more than taking pictures or recording if such activity is perceived as a disturbance or threat.In a country that prides itself on freedom and the unalienable rights of Life, Liberty and the pursuit of Happiness, it can only be hoped that the detrimental statutes discussed above would not be used by the government to infringe on constitutionally protected activities; but nevertheless it is critical for everyone to be mindful that such laws exist.