March 18th, 2011 by Alicia Calzada and tagged Access, crop, farm, first amendment, HF 589, iowa, law, legislation, newspapers, photographers, photography, photojournalism, trade secrets, trespassing, video
Recently we told you about a bill banning photography of farms in Florida. We have learned that there is a similar bill, prohibiting photography (among other things) of farms and crops without the permission of the owner. The Iowa bill has been compared to the Florida bill, but a quick read of the bill shows that it is far worse. To Iowaâ€™s credit, it appears that photography from the street wouldn’t be affected, however, mere possession and distribution of undercover photography of a farm would be a crime. This elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.
Specifically the bill states that “distribution or possession” of photographs that were illegally obtained (through violations of earlier portions of the bill). Under the proposed law, “A person is guilty of animal facility interference if the person.Â .Â .Â [p]ossess or distribute a record which produces an image or sound occurring at the animal facility whichâ€ isÂ a â€œreproduction of a visual or audio experience occurring at the animal facility, including but not limited to a photographic or audio mediumâ€ without the consent of the owner.
To give some perspective to the blatant unconstitutionality of this bill consider this â€“ the only time that the Supreme Court has upheld a law that bans distribution and possession of any kind of photography it was a law against possessing and distributing child pornography. As powerful of a lobby farmers are, elevating exposes of farms to the level of child pornography is absurd and I can’t see how this would hold up. Just last year the Supreme Court ruled that a law banning possession and distribution of video of cruelty to animals was unconstitutional. See U.S. v. Stevens, 130 S.Ct. 1577 (2010). The intent of that law was to prevent animal cruelty but even it went too far (the NPPA signed an amicus brief advocating for the overturning of that bill).
The government canâ€™t even prevent the possession and distribution of documents that put U.S. security interests at risk so it is hard to imagine how the public relations interests of farms would be considered more compelling than U.S. security interests.
Several years ago (2001), in a case called Bartnicki v. Vopper, the Supreme Court ruled that when a news organization lawfully obtained a recording, they could not be held liable for the publication of the details of the recording, even though the recording itself was illegally obtained. The Iowa law would make a news organization liable for publishing a recording, even if the news organization had nothing to do with obtaining the recording.
The NPPA has contacted lawmakers in Iowa regarding the bill.
Journalists and Photographers in Iowa should be very concerned about this bill. While it would no doubt be struck down in court, it is much easier for all of us if it never makes it to the governorâ€™s desk.
Sec. 9.1(a)(2) makes it a crime to â€œPossess or distribute a record which produces an image or sound occurring at the animal facilityâ€ which was taken without permission of the owner.
Sec. 14.1.b makes it a crime to â€œPossess or distribute a record which produces an image or sound occurring at the crop operation which wasâ€ taken without permission of the owner.