The following Article was released at PDN online on March 18, 2011.
by David Walker
©The Humane Society of the U.S.
Legislators friendly to agribusiness in some states are trying to protect factory farming operations from bad publicity by criminalizing photography of farms without the consent of the owners. A state senator in Florida, for instance, has introduced a bill to criminalize photographs of farms taken from any location, including public spaces and roadways. Meanwhile, the Iowa house of representatives passed a bill yesterday that would criminalize photographs taken on farm property without the owner’s permission.
The proposed laws are in response to photos and videos that animal rights activists have made–sometimes with the help of farm employees secretly photographing operations–to show the mistreatment of animals at factory farms. Similar laws are already on the books in Missouri, Alabama, and Kansas, according to the Humane Society of the United States.
Agribusiness interests accuse the activists of manipulating the images–and abusing animals themselves–to cast the factory farms in a bad light. Factory farm operations have also come under growing criticism for the environmental damage they create.
Wayne Pacelle, president of the Humane Society, says, “What these legislatures are doing is trying to stop people of conscious from documenting terrible abuses that are occuring on farms.” The laws have been difficult to challenge in court, he says, because so far they have been carefully written to withstand legal challenge.
In Florida, state senator Jim Norman has introduced the most draconian of anti-photography bills. He wants to make it a felony to photograph any farm–from any location–without the owner’s written consent. If passed as written, the bill would take effect July 1. (An amendment proposed by another senator would limit the scope of the bill to cover only photos, video or audio recordings made from within the confines of the farm property.)
Norman did not respond immediately to a request for comment. But his bill is short and to the point:
(1) A person who enters onto a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree.
(2) A person who photographs, video records, or otherwise produces images or pictorial records, digital or otherwise, at or of a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree.
(3) As used in this section, the term “farm” includes any tract of land cultivated for the purpose of agricultural production, the raising and breeding of domestic animals, or the storage of a commodity.
Yesterday, the bill passed by the Iowa house of representatives by a vote of 66-27 would make it illegal to make photographs, videos or audio recordings on the premises of agricultural operations without permission. It would also be illegal to possess or distribute photos, video, or audio–a part of the bill that is aimed at publishers. The bill protects only farmers, not operators of animal shelters, kennels, or pet shops. A first offense would be considered an aggravated misdemeanor; a second offense would be considered a felony, punishable by fines up to $7,500 and five years in prison.
The bill still has to be passed by the Iowa state senate and then signed by the governor before it becomes law.
“The reason why I introduced this bill is because we need be very careful about our bio security and our livestock and our livelihood,” says Iowa state representative Annette Sweeney, a farmer and the bill’s original sponsor. “I’d love to show you cattle and horses, but please have me with you when you come on my property.”
She says legislators in Indiana, Missouri, Minnesota and Nebraska are preparing to enact similar bills, but a search of legislative sites for those states turned up no bills currently pending.
Sweeney emphasizes that the Iowa bill does not prevent anyone from photographing farms from public property such as adjacent roadways. But she’s sympathetic with the broader reach of the Florida bill.
“The legislation in Florida sends the message that we in the agricultural field are getting a litle tired of being exploited. [If you're taking pictures], you need to get the full story, instead of not having the courtesy to interview the owner.”
Mickey H. Osterreicher, general counsel for the National Press Photographers Association, says he has written to the agricultural committee of the Iowa legislature to inform members that the a bill barring the possession and distribution of unauthorized photos “would be unconstitutional.”
The only type of photographs that are illegal to possess and distribute in the US, he notes, are images of child pornography.
Osterreicher says the other parts of the bill barring photographers from making pictures on private property “make sense: if you do something without permission, you’d be liable for that.”
He dismisses the proposed laws as “feel-good bills for the most part” because business owners already have the legal means–namely laws against trespassing–to prevent someone from coming onto their property and taking pictures without their consent.
“Lobbyists see stories that they don’t want [published]. So legislators are trying to show their constituents they’re doing something,” Osterreicher says.
“As a general rule of thumb, the issue is whether a [subject] has a reasonable expectation of privacy,” Osterreicher explains. If so, a photographer can be liable for civil and criminal penalties for taking unauthorized photographs.
“I tell photographers all the time: just because you’re a journalist doesn’t mean you can break the law” in order to cover a story.