Can the state require people who record livestock abuse to turn over the videos and report to law enforcement within 48 hours, or does that violate the First Amendment?

Subject

Opinion No. 13-39, Constitutionality of Requirement to Produce Evidence in Animal Cruelty Case, May 9, 2013

Plain-English summary

HB1191, the "ag-gag" bill, would have required any person who intentionally records (by photo, digital image, video, or similar medium) a violation of Tennessee's livestock cruelty law to report the violation to law enforcement and submit "any unedited" recordings within 48 hours, with violations classified as a Class C misdemeanor.

The AG identified four constitutional problems.

1. First Amendment underinclusiveness. The bill applied only to people who intentionally recorded livestock cruelty for the purpose of documenting it. Eyewitnesses who didn't record, people with other knowledge, and inadvertent recorders weren't subject to the reporting requirement. Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011), held that "[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." HB1191 singled out people who use recording devices, an activity protected by the First Amendment as newsgathering. Compared to Tennessee's child-abuse (§ 37-1-403) and adult-abuse (§ 71-6-103) mandatory reporting statutes (which apply to anyone with knowledge), HB1191 was conspicuously underinclusive.

2. Possible prior restraint. HB1191(1)(B) required submission of "any" unedited photographs, digital images, or video recordings. Under Tennessee Supreme Court precedent, "any" means "all." Austin v. Memphis Publ'g Co., 655 S.W.2d at 149; Roddy Mfg. Co. v. Olsen. So the bill could be read to require surrendering all copies, leaving the recorder with nothing to publish. That would be a prior restraint under CBS, Inc. v. Davis, 510 U.S. 1315 (1994). The AG suggested a constructional save: courts could interpret "any" to mean "any copies," not all copies, consistent with the bill's stated purpose. State v. Burkhart; Lee Medical, Inc. v. Beecher. Legislative history supported the narrower construction (Sen. Gresham and Rep. Holt's statements). But unless a court adopted the narrower construction, HB1191 would likely be unconstitutional as a prior restraint.

3. Newsgathering burden. Photography of matters of public interest qualifies as newsgathering protected by the First Amendment. Gilles v. Davis (3d Cir. 2005); Smith v. City of Cumming (11th Cir. 2000); Fordyce v. City of Seattle (9th Cir. 1995). Branzburg v. Hayes requires that newsgathering claims be weighed against the state's interest in law enforcement. HB1191 lacked many of Branzburg's safeguards: no judicial oversight of the demand, a tight 48-hour window, vague "law enforcement authorities" destination, and no confidentiality for the reporter. The AG noted the Sixth Circuit's narrow reading of Branzburg (Storer Communications v. Giovan) and Tennessee's Shield Law (§ 24-1-208), but flagged HB1191 as a likely substantial burden on newsgathering.

4. Fifth Amendment self-incrimination. A recorder might have committed trespass or other offenses to obtain the footage. HB1191's compelled submission could include evidence incriminating the recorder. Branzburg (408 U.S. at 708) and Johnson v. United States, 228 U.S. 457 (1913), preserve Fifth Amendment rights. HB1191 cannot override the constitutional privilege against self-incrimination.

Copyright (question 2). Even with the constitutional problems on the reporting requirement, the AG addressed copyright. The recorder might own (1) the physical recording medium and (2) a copyright interest in the images. If "any" means "copies only," the bill doesn't significantly invade the medium. As for copyright, law enforcement's "circumscribed, noncommercial use of images depicting cruelty to livestock in the course of an investigation of a crime amounts to a fair use" under 17 U.S.C. § 107. Scott v. WorldStarHipHop, Inc.; Jartech; Nimmer on Copyright. Public-records recipients, however, would still be subject to ordinary copyright restrictions.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

HB1191 became law in Tennessee but was struck down in federal court litigation. Anyone analyzing a current ag-gag bill should consult the post-2013 First Amendment cases on filming public officials and animal-cruelty documentation, including the various federal court decisions striking down similar statutes in other states.

Background and statutory framework

HB1191. Would have amended Tenn. Code Ann. § 39-14-202 (cruelty to animals) with a new subsection requiring people who "intentionally record by photograph, digital image, video or similar medium for the purpose of documenting" livestock cruelty to:

• Within 48 hours (or close of business next business day, whichever is later), report the violation to a law enforcement agency with jurisdiction.
• Submit any unedited photographs, digital images, or video recordings to law enforcement authorities.

Violation: Class C misdemeanor punishable by fine only.

"Livestock." § 39-14-201(2): "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, goats, and poultry." Cruelty to animals under § 39-14-202 is a Class A misdemeanor; second/subsequent convictions are Class E felonies. § 39-14-202(g).

Existing mandatory reporting statutes. § 37-1-403(a)(1) (child injury or abuse — anyone with knowledge must report); § 71-6-103(b)(1) (adult abuse, neglect, exploitation — anyone with reasonable cause to suspect must report). Both provide confidentiality and immunity for reporters. HB1191 provided neither.

Newsgathering and the First Amendment. Branzburg v. Hayes, 408 U.S. 665 (1972), recognized newsgathering as a First Amendment activity but rejected a privilege against responding to grand jury subpoenas. The Sixth Circuit reads Branzburg narrowly. Storer Communications v. Giovan (6th Cir. 1987). But the photography-of-public-interest cases (Gilles; Smith v. Cumming; Fordyce v. Seattle) recognize that photographing matters of public concern is First Amendment activity.

The underinclusiveness argument. Brown v. Entertainment Merchants Ass'n: California's restriction on violent video games (but not other violent media) was "wildly underinclusive" relative to the state's asserted interest in protecting children, raising doubts about the state's real motivation. HB1191 raised the same concern. If the state's interest was rapid law enforcement response to animal cruelty, why limit the duty to recorders? Why not require all eyewitnesses to report, like the child/adult abuse statutes?

Prior restraint analysis. CBS v. Davis stayed an injunction against broadcast of a videotape, even one obtained through alleged "calculated misdeeds." United States v. Stevens held that depictions of animal cruelty are not categorically outside First Amendment protection. The narrowness of HB1191's window (48 hours) plus the broad "any" surrender requirement could effectively prevent publication.

Statutory construction to save constitutionality. State v. Burkhart, 58 S.W.3d 694 (Tenn. 2001), requires courts to construe statutes to avoid constitutional conflict where reasonably possible. Sen. Gresham (Senate sponsor): HB1191 doesn't prohibit retention of copies by the recorder. Rep. Holt (House sponsor): "There's nothing here that says . . . a third party cannot have a copy of this tape or recording." If a court adopted this narrower reading, HB1191 might survive the prior restraint problem.

Void for vagueness. The "any" ambiguity also raises a vagueness problem under Grayned v. City of Rockford and City of Chicago v. Morales. A statute with criminal penalties must clearly define the prohibited conduct. If reasonable people can't tell whether they must surrender all copies or just copies of the recording, the statute is vague.

Photography of public matters. Multiple federal circuits have recognized First Amendment protection for filming matters of public interest. Gilles v. Davis (3d Cir. 2005); Smith v. City of Cumming (11th Cir. 2000); Fordyce v. City of Seattle (9th Cir. 1995). The photography itself is protected speech, so a state restriction on what photographers must do with their recordings impacts First Amendment activity directly.

Fair use and copyright. 17 U.S.C. § 107 four factors: (1) purpose and character (including commercial vs. nonprofit); (2) nature of the copyrighted work; (3) amount used; (4) effect on the potential market. Courts have repeatedly held that reproduction in litigation evidence is fair use. Scott v. WorldStarHipHop; Jartech v. Clancy. So law enforcement's investigative use of submitted recordings doesn't infringe.

Public records. Tennessee Public Records Act (§§ 10-7-101 to -702) likely applies to recordings submitted under HB1191, because HB1191 doesn't create a confidentiality exception. Public-records recipients are subject to applicable copyright restrictions.

Common questions

What's the underinclusiveness problem?

HB1191 only required people who intentionally recorded livestock cruelty to report. Anyone else with knowledge (eyewitnesses, accidental witnesses, those who saw recordings but didn't make them) had no reporting duty. If the state's goal was rapid law enforcement response, this distinction makes no sense. Brown v. EMA explained that underinclusive laws raise doubts about whether the state is pursuing the asserted interest or targeting particular speakers.

What's the prior restraint problem?

If "any" unedited recording must be submitted within 48 hours, the recorder has 48 hours to prepare publication. If "any" means "all" (and Roddy Mfg. and Austin v. Memphis Publ'g say "any" generally means "all"), the recorder must give up everything. That looks like a prior restraint on publication. The AG suggested courts might construe "any" narrowly to save the statute.

What's the newsgathering burden?

Recording animal cruelty (for publication, advocacy, or legal documentation) is First Amendment newsgathering. HB1191 burdens that by forcing the recorder to turn over evidence to law enforcement quickly and without judicial supervision, without confidentiality, and under threat of criminal penalty. Branzburg allows some burdens, but HB1191 lacks the procedural safeguards (judicial oversight, confidentiality, narrow time scope) that mitigated the burden in Branzburg.

What's the Fifth Amendment problem?

To obtain footage of cruelty inside a farm, the recorder often trespasses or commits other offenses. HB1191 requires submission of the footage, which would also reveal the recorder's own potential criminal conduct. The Fifth Amendment privilege against self-incrimination would let the recorder refuse to submit. HB1191 can't override the constitutional privilege.

Could the law be saved by narrower interpretation?

The prior restraint problem could be cured if courts read "any" as "any copies, not all copies." Legislative history supported that reading. The other problems (underinclusiveness, newsgathering burden, self-incrimination) would still need to be addressed.

What happens to recordings once law enforcement gets them?

Law enforcement's use during investigation likely qualifies as fair use under 17 U.S.C. § 107. The recordings probably become public records (no confidentiality exception in HB1191), but recipients accessing them through public records requests would still be bound by copyright restrictions on display, reproduction, and distribution.

Citations

Statutes: Tenn. Code Ann. § 39-14-201 (livestock definition); § 39-14-202 (cruelty to animals); § 24-1-208 (Tennessee Shield Law); §§ 10-7-101 to -702 (Public Records Act); § 71-6-103 (adult abuse reporting); § 37-1-403 (child abuse reporting). Federal: 17 U.S.C. §§ 101 to 1332 (Copyright Act); § 107 (fair use). Cases: Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011); Branzburg v. Hayes, 408 U.S. 665 (1972); Austin v. Memphis Publ'g Co., 655 S.W.2d 146 (Tenn. 1983); Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983); CBS, Inc. v. Davis, 510 U.S. 1315 (1994); United States v. Stevens, 130 S.Ct. 1577 (2010); State v. Burkhart, 58 S.W.3d 694 (Tenn. 2001); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010); Grayned v. City of Rockford, 408 U.S. 104 (1972); City of Chicago v. Morales, 527 U.S. 41 (1999); Storer Communications v. Giovan, 810 F.2d 580 (6th Cir. 1987); Johnson v. United States, 228 U.S. 457 (1913); Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Scott v. WorldStarHipHop, Inc., 2011 WL 5082410 (S.D.N.Y. Oct. 25, 2011); Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982); Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-039.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

May 9, 2013

Opinion No. 13-39

Constitutionality of Requirement to Produce Evidence in Animal Cruelty Case

QUESTIONS

1. Does House Bill 1191/Senate Bill 1248 of the 108th Tennessee General Assembly, 1st Session (2013) as amended, (hereinafter "HB1191") violate the United States Constitution?

2. Does HB1191 impair a protected property interest in media work product such as video or photographs taken as part of an undercover investigation?

OPINIONS

1. HB1191 is constitutionally suspect under the First Amendment on three grounds: 1) the scope of HB1191's requirements is underinclusive relative to the governmental interest in preventing cruelty to livestock; 2) HB1191's requirement to provide any recordings of livestock cruelty to law enforcement could be an impermissible prior restraint; and 3) HB1191's reporting requirement could be found to constitute an unconstitutional burden on news gathering. In addition, HB1191 could be held to violate a person's Fifth Amendment right against self-incrimination.

2. The more persuasive position is that the circumscribed, non-commercial use of images depicting cruelty to livestock during the course of the law enforcement investigation of a crime amounts to fair use. Persons who may receive the images depicting cruelty to livestock through a public records request to the government would be subject to any applicable copyright restrictions regarding the display, reproduction, or distribution of those images.

ANALYSIS

1. HB1191 amends Tenn. Code Ann. § 39-14-202, relating to cruelty to animals, by adding the following new subsection:

(1) A person who intentionally records by photograph, digital image, video or similar medium for the purpose of documenting a violation of subsection (a) committed against livestock shall, within forty-eight (48) hours, or by the close of business the next business day, whichever is later:
(A) Report such violation to a law enforcement agency with jurisdiction over the alleged offense; and
(B) Submit any unedited photographs, digital images or video recordings to law enforcement authorities.
(2) A violation of this subsection is a Class C misdemeanor punishable by fine only.

HB1191 applies only to animal cruelty committed against "livestock." "Livestock" is defined in Tenn. Code Ann. § 39-14-201(2) to mean "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, goats, and poultry." Cruelty to animals prohibited by Tenn. Code Ann. § 39-14-202 is a Class A misdemeanor, with second or subsequent convictions being a Class E felony.

The stated purpose of the bill according to its legislative history is to ensure the prompt reporting of animal cruelty committed against livestock and the submission of any unedited documentary evidence to a law enforcement agency so that the suspected animal cruelty may be expeditiously investigated and addressed by law enforcement. HB1191 does not require everyone with knowledge of animal cruelty committed against livestock to report the violation to a law enforcement agency with jurisdiction over the alleged offense; rather it requires only "a person who intentionally records . . . for the purpose of documenting a violation" to report the violation.

Requiring the reporting of a criminal offense is not unprecedented in Tennessee law. For example, abuse, neglect, or exploitation of an adult, as well as child injury or abuse, must be reported. Tenn. Code Ann. § 71-6-103 (adults); Tenn. Code Ann. § 37-1-403 (children). Both reporting statutes provide confidentiality and immunity to the reporter. HB1191 provides neither.

HB1191's requirements related to both the reports and the recordings impact speech rights protected by the First Amendment. 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. In addition, HB1191 raises Fifth Amendment concerns related to self-incrimination.

Underinclusiveness

In Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011), the United States Supreme Court struck down a state regulation restricting access of minors to "violent video games" as being violative of the First Amendment. The Court explained: "[The state's] regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Brown, 131 S. Ct. at 2740.

HB1191 imposes a reporting duty only on persons who are seeking to engage in speech by creating communicative recordings for the purpose of documenting animal cruelty committed against livestock. The 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.

Prior Restraint

The scope of subsection (1)(B) of HB1191 is unclear insofar as it requires the person recording an instance of livestock cruelty to "[s]ubmit any unedited photographs, digital images or video recordings to law enforcement authorities." The word "any" has as one of its ordinary meanings "every" or "all." The Tennessee Supreme Court adopted this broad and inclusive definition of "any" in Austin v. Memphis Publ'g Co., 655 S.W.2d at 149 (finding that "[t]he non-specific adjective 'any' means 'all.'"); see also Roddy Mfg. Co. v. Olsen, 661 S.W.2d 868, 871 (Tenn. 1983).

Construed in this sense, HB1191's requirement to submit "any" unedited recordings would require the surrender of all images to law enforcement and would prohibit the person who made the recordings from retaining them in any form. This requirement would appear to prevent the person making the recording from publishing the images once they have been given to law enforcement authorities. Under many circumstances, forty-eight hours may not be sufficient time to prepare and publish recordings subject to HB1191. Accordingly, HB1191 could be held to be a presumptively unconstitutional prior restraint on expression. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994); see also United States v. Stevens, 130 S.Ct. 1577, 1585 (2010).

In order to avoid this constitutional infirmity, a court may adopt an alternative construction and interpret HB1191 as not requiring the submission of all existing copies. See State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). There are statements in the legislative history supportive of this construction by Sen. Gresham and Rep. Holt.

The ambiguity over whether HB1191 requires that "all" recordings be submitted to law enforcement authorities would also give rise to a challenge against the legislation under federal due process standards as being "void for vagueness." Grayned v. City of Rockford, 408 U.S. 104, 108-10 (1972); see also City of Chicago v. Morales, 527 U.S. 41, 56 (1999).

News Gathering Privilege

The Court in Branzburg recognized that news gathering qualifies for First Amendment protection, see Branzburg, 408 U.S. at 681, 707. While this principle has been recognized primarily in the context of the press, it has also been acknowledged that the concept of news gathering is very broad and can encompass a wide scope of activity outside what is recognized as the traditional press. Photography of matters of public interest qualifies. See Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).

In Branzburg, the United States Supreme Court considered whether the First Amendment affords reporters a conditional privilege against responding to grand jury subpoenas and answering questions relevant to an investigation into the commission of a crime. The Court rejected the existence of a unique testimonial privilege for reporters before a grand jury. However, the operation of HB1191 is distinguishable in several respects from the grand jury subpoenas at issue in Branzburg. Branzburg relied on "the ancient role of the grand jury" in Anglo-American jurisprudence and noted that grand juries conduct secret proceedings and are subject to judicial control. HB1191 contains no corresponding commitment to secrecy and requires submission without judicial intermediation, within a relatively short time frame, and to undefined "law enforcement authorities."

Self-incrimination

Branzburg noted in the context of compelled speech related to criminal investigations that the courts will require grand juries to operate within the limits of the Fifth Amendment. In certain instances, unedited documentary evidence of suspected animal cruelty violation may also reveal a possible violation of the law by the person recording that cruelty, such as trespass. The Fifth Amendment right could be asserted to protect that person from being required by HB1191 to submit documentary evidence to law enforcement which may incriminate that person in a crime.

2. A recorder of livestock cruelty might have two property interests respecting the images taken: ownership of the physical medium in which the images are embodied and, provided that the pictures meet minimal standards of originality, a copyright interest in the images themselves. If the courts construe HB1191 as requiring only the submission of unedited copies to law enforcement, the law is not likely to significantly invade the former interest. The Copyright Act, 17 U.S.C. §§ 101 to 1332, grants to copyright holders the exclusive rights to display, reproduce, and distribute their works, 17 U.S.C. § 106. The fair use doctrine permits others to reproduce copyrighted works for approved purposes such as criticism, reporting, and education. See 17 U.S.C. § 107. "Using this analysis, courts have repeatedly held that the reproduction of copyrighted works as evidence in litigation is fair use." Scott v. WorldStarHipHop, Inc., No. 10 Civ. 9538(PKC)(RLE), 2011 WL 5082410, at *7 (S.D.N.Y. Oct. 25, 2011). Thus, while each case will turn on its own facts, law enforcement authorities are likely to be able to argue that a circumscribed, noncommercial use of images depicting cruelty to livestock in the course of an investigation of a crime amounts to a fair use.

HB1191 does not make the documentary evidence confidential nor does it create an exception to the Tennessee Public Records Act, Tenn. Code Ann. §§ 10-7-101 to -702, regarding whether a citizen may request the production the documentary evidence required to be submitted to law enforcement authorities. To the extent that this documentary evidence is subject to production under a public records request, the citizen receiving that documentary evidence apparently would be bound by any applicable copyright laws regarding the display, reproduction, and distribution of that material.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

STEVEN A. HART
Special Counsel

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
Representative Mike Stewart
52nd Legislative District
23 Legislative Plaza
Nashville, TN 37243-0152