March 10th, 2012 by Alicia Calzada and tagged agricultural, Agricultural Property Release, agriculture, farm bills, iowa, journalism, NPPA, photography, photojournalism, photojournalist, recording, television, Utah, video, visual journalism
The first two in a series of so-called “Ag-Gag” bills has been enacted into law. The bills, different versions of which have been pending in over half a dozen states, target animal rights activists but frequently are written in broad language that impacts other lawful First Amendment activity.
Iowa was the first state to pass a bill, in early March, making access to an agricultural facility by “false pretenses” illegal. It was heavily amended from its original version. The introduced version of the bill would have made recording while on the farm without the consent of the owner a misdemeanor (and a felony for a second offense) and made mere possession of photographs or video resulting from the earlier act a crime. Thankfully, that version did not pass- it would have been easily found unconstitutional. To put this into perspective, the only other category of photography that is a crime to possess is child pornography. In fact, just a couple of years ago, the Supreme Court ruled that it was unconstitutional to criminalize the possession of video depicting animal cruelty.
A bill making photography of farm operations without the consent of the owner illegal has passed in Utah. The Utah state senate passed HB 187 and it is headed to the governor for a signature. An amendment was made after the NPPA and several other groups protested the original language of the bill. The bill makes it a crime to photograph “agricultural operations” without consent of the owner.Â There was no distinction in the original version of the bill for private vs. pubic property, and the wording left open the possibility prosecution for photographing animals grazing on public lands. The bill was amended to clarify that “agricultural operations” is “private property” and passed with that language. However the bill is still problematic as it takes a crime- trespassing- and makes it subject to a greater punishment (a Class A misdemeanor vs. a Class B misdemeanor) because the added element of a First Amendment activity is involved.
A bill pending in New York, would criminalize the “unauthorized video, audio recording or photography done without the farm owner’s written consent.” Like certain proposals NPPA objected to in the last, there is not even a limitation in this bill that the photographer be trespassing. As written, it would be a misdemeanor, punishable by up to a year in prison, or a fine of $1,000 to stand on the side of the road and photograph farm animals or farm.
Even bills which makes it a crime to take photographs on a farm while trespassing are problematic because an essential element of the crime is photography. It is a content-based restriction (with a specific list of what would be in the photograph that would convert an otherwise law abiding photographer into a criminal).
The application of these laws to photographic activity will be subject to constitutional scrutiny. NPPA will continue to monitor and oppose these bills as we have done in the past.
NPPA is drafting a model release for photographers in Utah and Iowa to bring to assignments on property that could be considered an agricultural operation, or otherwise subject to this law.
If you are aware of pending legislation that would affect photographers, please alert us at advo...@nppa.org or law...@nppa.org.
Posted in ag-gag, Cameras, contracts, First Amendment, Iowa, Legal, National Press Photographers Association, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Recording, Regulations limiting photography, Uncategorized, Utah, video cameras | 12 Comments »
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.
Posted in Access, First Amendment, law, Legal, multimedia, photographers, photojournalism, trespass | 14 Comments »