Governor Should Veto Ag-Gag Bill

Tennessee Governor Bill Haslam should veto a bill sponsored by State Representative Andy Holt (R-Dresden). It is called the Livestock Cruelty Prevention Act. Groups normally associated with preventing animal cruelty have lined up against Holt’s bill.  They claim that the legislation’s provisions are to force anyone who videotapes or witnesses animal abuse to report that to law enforcement within 48 hours. Critics say it eliminates adequate investigations of abuse and has a chilling effect on would-be whistleblowers.
Holt said the 48-hour provision is designed to stop abuse as soon as possible: that’s its only intent, said Holt.
Holt’s bill requires a person who intentionally records by photograph, digital image, video or similar medium for the purpose of documenting the offense of cruelty to animals committed against livestock, within 48 hours, or by the close of business the next business day, whichever is later, to:

(1) Report such violation to a law enforcement agency with jurisdiction over the alleged offense; and
(2) Submit any unedited photographs, digital images or video recordings to law enforcement authorities.

A violation of this amendment is a Class C misdemeanor punishable by fine only.
In the opinion of animal rights groups, it is simply will have a chilling effect on would-be whistleblowers, who often require months of evidence to build a case of animal abuse.
One Tennessee legislator said the bill is similar to the darker times in Germany when neighbors had to spy on neighbors. Editorial writers have called it Orwellian, similar to the Big Brother in the book 1984.
As a journalist, I see the bill as one a slippery slope to dismantling some of the privileges of established journalists. It essentially sidesteps the Tennessee Shield Law that has been part of the tenants of the Fourth Estate.
In my 34 years of journalism, this newspaper has used the Shield Law only on two instances: one was the Dennis Brooks Jr. murder case, and the other was only recently when an attorney wanted one of our reporter’s notes.
Holt’s bill makes it a criminal offense crime if anyone, including news photographers, takes pictures of livestock abuse or suspected abuse and does not turn over all photos and unedited video to the government within 48 hours.
The legislation will have a chilling effect on the ability of the mainstream press to investigate cases of suspected abuse.
In an opinion piece by J.R. Lind, published in the (Nashville) City Paper, “The bill runs counter to the First Amendment — the one that starts the Constitution, that document which Gresham (the Senate sponsor) and ALEC and their ilk claim to love unconditionally in its original form. The guarantee of a free press guarantees that the press is not some deputized arm of your local sheriff’s department. The press is free to act as it will, gathering information as it sees best, publishing that information on its own schedule.”
I e-mailed Representative Holt on March 13 and April 17 concerning provisions of the Shield Law and should be part of his legislation. However, he chose to ignore my requests. In a different situation, he responded to a question about the Shield Law and asked if a blogger can also be classified as a reporter; or possibly he is a reporter since he often posts on social media. Since my family owns two newspapers in his legislative district, I would have been happy to speak with him on the subject.
Here are some other aspects of Holt’s bill:
First Amendment lawyers agree it will allow government to chip away at the Shield Law.
It passed with the bare 50 votes. Governor Haslam should be willing to veto it on that ground – especially since it was never vetted by the House Judiciary committees, which would typically hear such legislation.
That is particularly disconcertingly since SB1248 creates a new Class C misdemeanor criminal offense, subject to large fines.
Fellow legislators unsuccessfully twice attempted to exempt working journalists from the bill. Law enforcement can get information from reporters about law violations now under adequate due process procedures to protect the press from government rummaging through desks, notes and reporter/photographer work product that is not ready for publication.
State Rep. Susan Lynn, in her effort on the House floor to remove journalists from the bill, pointed out “this new law will serve to intimidate and punish those who seek to discover if a crime has been committed rather than punish those who commit crimes.”
The legislation is designed to smoke out sources who seek to reveal and report on abuses.  It is not designed to protect animals.
The legislation is touted as protecting animals from abuse, but Holt, the House sponsor, makes no secret of the fact that it targets “radical” animal rights advocates and potential animal abuse whistleblowers.
Reporters/photographers and the First Amendment should not be shot in the crossfire of Holt’s bill.
It is time to urge the governor to veto the legislation. There are already laws to report animal abuse without criminalizing witnesses and reporters.
The Tennessee Press Association and the Tennessee Association of Broadcasters oppose the bill.

TPA asks Gov. Haslam to veto ‘animal cruelty’ bill

On Tuesday, Frank Gibson, public policy director of the Tennessee Press Association, sent a letter to Gov,.Bill Haslam asking him to veto SB1248/HB1191. It is worth reading because it sets out the major reasons why this legislation should be rejected.

May 7, 2013

The Honorable Bill Haslam
Governor of Tennessee
State Capitol
Nashville, TN

Governor Haslam:

The Tennessee Press Association requests that you veto Senate Bill 1248/HB1191.

Comments attributed to you at a press availability last week in Smyrna make it abundantly clear that you understand the important constitutional and policy problems present in this legislation. Your comments cut through some of the emotional rhetoric this bill has engendered.
Here are the comments attributed to you: “At the end of the day, we want to come back to looking at: Is it good policy, is it constitutional, and do we think it’s something that will actually help the welfare of animals and livestock?” It is the TPA’s view and opinion of our attorneys that the answer is “No” to all three questions.

“Is it good policy?” It is not. The bill is in direct conflict with Tennessee’s Reporters Shield Law, found in T.C.A. 24-1-208(a) and on the books since 1973. This means enforcement will create legal confusion and require the expenditure of thousands of dollars in legal fees to clarify. This bill was never assigned to either Judiciary committee in the House because the criminal penalty was omitted until it came up in the House Agriculture Committee. Legal questions were raised by two subcommittee members but members of the Ag Committee had no interest in hearing them after the House sponsor declared he would take no amendments.

Representative Holt acknowledged on the House floor it was not his intention to repeal the Shield Law, yet that would be the consequence of this legislation. TPA and its member newspapers ask that you consider that in your deliberations.
It is not good policy to adopt legislation that forces citizens, including corporate citizens, to litigate whether a conflicting statute applies to them.

Is it constitutional? No, but it could take tens of thousands of dollars to get a formal, official, and binding answer to that question. Subjecting news reporters and photographers to criminal penalties for doing their job is an unconstitutional abuse of government power. As the Knoxville News Sentinel noted recently, SB1248/HB1191 clearly runs afoul of the First Amendment. It also runs contrary the press freedoms set out in Article I, Section 19, of the Tennessee Constitution’s Declaration of Rights.

Finally, will it “actually” help the welfare of animals and livestock? It will not in our opinion because in the end it will interfere with investigations of animal cruelty by the press and others before those inquiries are complete. The practical effect would be that it would tip off suspected abusers and prematurely identify investigators or whistleblowers.

It should be pointed out that authorities can get information they need from journalists under the Shield Law, when law violations are involved, but journalists should not be forced to turn over unfinished work product to the government without the due process protections the legislature set out in that statute. Doing that could lead to unconstitutional prior restraint on the press, forcing journalists to publish material before the work is done.That would be irresponsible but necessary to prevent government interference.

It is ludicrous to suggest that the news media or others would sit on evidence of animal cruelty and prolong the suffering of animals as proponents of SB1248/HB1191 claimed. The facts in the recent Tennessee Walking Horse case show that the video was turned over to the federal government within days of being taken. It was authorities who took weeks to act on the evidence presented to them.

We thank you for considering our position on this bill and ask again that you exercise your constitutional power to veto it.

Sincerely,

Frank Gibson
Public Policy Director
Tennessee Press Association

Ag Gag bill sneers at First Amendment | The Upfront Page | knoxnews.com

Ag Gag bill sneers at First Amendment | The Upfront Page | knoxnews.com.

Cruelty to animals bill at odds with journalists

 

By KENT FLANAGAN

Legislation working its way through the General Assembly purports to improve the reporting of cruelty to animals but actually limits investigative reporting of such incidents regardless of who is reporting. And it comes in direct conflict with Tennessee’s Shield Law.

House Bill 1191 (Senate Bill 1248) requires that anyone photographing or taking videos of an act of animal cruelty as defined in TCA Section 39-14-202 is required to report the violation and submit any unedited photographs or video recordings to law enforcement authorities no later than the end of the next weekday.

I understand the sponsors’ efforts to limit the abilities of such organizations as the Humane Society of the United States and PETA (People for the Ethical Treatment of Animals) to trash animal husbandry since agriculture remains one of the strongest sectors of the state’s economy.

And for lack of a better term, a state of war has existed for years between HSUS and the Tennessee walking horse industry.

A widely distributed Humane Society video report of soring and beating of walking horses by former walking horse trainer Jackie McConnell and two employees dealt a harsh blow to the image of the industry last year. McConnell entered into a plea agreement in federal court and was banned for life from walking horse industry associations for his violations of the federal Horse Protection Act.

Other livestock farmers across the state fear that any of them could be targeted by similar undercover video or photographic accounts of what HSUS or PETA may portray as abuse but which may well be standard stock farming practices.

But this legislation also places traditional newspaper and broadcast journalists on the horns of a dilemma since the bills do not differentiate between them and ordinary citizens or so-called animal rights advocates.

News reporters for broadcast news operations or newspapers do not judge situations or incidents they cover for stories. Instead, they rely upon law enforcement officers and district attorneys to determine if crimes have been committed and the journalists report those determinations. Judgment is left up to the courts.

Reporting all sides of a story, such as animal abuse, requires more than a photo or video. It requires confirmation by other sources on the record and requests for comment. It takes time to get the facts. Rushing to meet a legislative mandate can lead to costly mistakes.

Surrendering all unedited photos or video recordings also violates a basic journalism tenet held by most news organizations that do not allow dissemination of unpublished images. That is part of the shield law privilege in many states.

But with this legislation, the sponsors are using a sledge hammer to drive a nail.

Kent Flanagan is executive director of the Tennessee Coalition for Open Government. He can be reached by phone at (615) 957-2825 or by email at kent.flanagan@gmail.com.

Keeping gun permits public is the best policy

By KENT FLANAGAN

The handgun carry permit registry maintained by the state Department of Safety has been open for public review since 1996 without any proof that public access has endangered any registrant.

However, some gun owners protest that the open records violate their privacy and the Legislature is debating a law to close general access to the registry.

What privacy issue do they mean?

Thousands of firearms are purchased every year in Tennessee, yet the only weapons that are registered in the state database are for the privilege of carrying handguns openly or concealed in public.  The database does not include the many thousands of other handguns, shotguns and rifles that citizens have a right to maintain in the privacy of their homes without registration.

This is not about Second Amendment rights. It is about personal privilege on one narrow issue involving weapons.

Some pro-gun advocates hold the strong belief that we would all be safer if everyone carried a weapon. But I doubt that the majority of Tennesseans who do not have carry permits agree or they would have signed up for permits to carry weapons in public.

In fact, many believe that the presence of a private citizen carrying a handgun in a public place can provoke extreme unease to the extent that anyone unarmed may feel threatened. The ancient Greeks would not allow the carrying of spears and swords inside the walls of their city states for that very reason. Sheriffs and marshals in our own frontier towns often required visitors leave their six-shooters at the jail.

Today in Tennessee, nearly 400,000 citizens have permits to carry handguns in public. But how do the rest of the citizens of the state know if anyone carrying a handgun actually has a permit to carry that weapon? Without access to the database, they cannot know for certain.

Earlier this year, a review by The Associated Press of suspended and revoked gun carry permits found that 4,332 people had lost their carry permits over the past five years. Nineteen percent lost their permits permanently while the rest were suspended temporarily.

Legislation to close the registry faces one final vote in the Senate next week. It would still allow citizens the limited ability to check people facing felony charges to see if they hold permits to carry handguns. But it would not allow a search for such information for people on misdemeanor charges such as State Rep. Curry Todd, whose permit was suspended after he pleaded guilty to DUI in January.

The public registry was created 17 years ago after the public learned that handgun permits were sometimes given secretly as political favors by local sheriffs. The state of Tennessee then decided that the public welfare required that the state regulate the possession of firearms in public.

It is still in the best interest of the people of Tennessee that public access to the database continue for the sake of transparency and open government.

The admonition of the late Carl A. Jones, publisher of the Johnson City Press, rings as true today as it did when it became the slogan of the newspaper decades ago: “What the people don’t know will hurt them.”
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Kent Flanagan is executive director of the Tennessee Coalition for Open Government, dedicated to preserve and promote access to public information. He can be reached at (615) 957-2825 or kent.flanagan@gmail.com.

Keep the sun shining, government open in Tennessee

EDITOR’S NOTE: The following editorial was published in The Leaf-Chronicle of Clarksville on March 10, the beginning of Sunshine Week. It is as relevant today as it was then since the legislative effort to weaken the Sunshine Law is scheduled to be before the House State Government subcommittee on Tuesday, March 26.

Today marks the beginning of Sunshine Week, an observance introduced in 2005 by the American Society of News Editors to remind Americans of how precious a gift we have in open government, and why we all must demand it remain so.

 Sunshine Week is observed annually in March to coincide with the March 16 birthday of President James Madison, the father of the First Amendment. But the application of the concept of sunlight, as in shining light on government action, is traced to a quote in 1912 by Supreme Court Justice Louis Brandeis, who told a magazine: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

ImageThe week presents an opportunity to compare government’s actions concerning its transparency with what is actually happening. Most years it easy to find a current case of government threatening to close the curtain on its business, limit the sunlight and reduce access.

This week, right on schedule, we learned of a renewed push is under way to get Tennessee lawmakers to allow local officials to hold more closed-door meetings. Williamson County Commissioner Bob Barnwell, who led a similar attempt last year, has written to local government colleagues around the state urging them to encourage state lawmakers to pass a bill to allow private meetings among officials as long as a quorum isn’t present.

Plainly stated, Barnwell’s proposal would allow secret meetings among 10 Montgomery County commissioners or six Clarksville City Council members who could strike deals out of the public eye.

Current law wisely forbids members of a local legislative body from meeting privately to deliberate on public business. It does not ban officials from speaking to each other during chance encounters or from having other conversations.

To their credit, last year Republican Gov. Bill Haslam and the speakers of the House and Senate expressed reservations about the effort to change the law, and the bill was withdrawn early in the session. The bill should be greeted with the same treatment again this year.

We urge members of the Montgomery County Commission and the Clarksville City Council to give no support to this misguided attempt to reduce government transparency. Beyond that, both bodies are encouraged to do as county commissions in Knox, Anderson, Sullivan and other counties did last year and approve resolutions rejecting the bill.

The open meetings law states, “The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.” Notice must be given of the meeting, and all votes must be in public.

That been a good standard in Tennessee for four decades, and it should continue. Moreover, citizens must be vigilant in support of the Sunshine Law. The government’s business will be conducted in the open only for as long as people and the press continue to demand transparency and accountability.

Secrecy is never the answer

By KENT FLANAGAN

Secrecy is not the answer. Secrecy will not solve our state’s problems. Instead, secrecy will only keep from Tennesseans the information they need to make informed decisions at the ballot box and to remain informed citizens.

Whether it is details about what the Department of Children’s Services has done to keep the most vulnerable children in our state from harm or, worst, death, Tennesseans need to know.

Or if it’s a new system of evaluating how well teachers in Tennessee’s public schools are performing, Tennesseans need to know.

Or if making public records of gun carry permits confidential will make the large majority of Tennesseans more safe in their homes, neighborhoods and workplaces, Tennesseans need to know.

In the first example, the public finally knows that DCS has used state laws and other tactics to delay release what should be public information about the circumstances in which more than 200 children died or nearly died since 2009.

But it took a costly lawsuit filed by a coalition of media and open government advocates to force DCS to produce information, which has been further delayed by questionable tactics by DCS staff and attorneys.

In the case of the teacher evaluation system, lawmakers passed legislation into law making information about the evaluations confidential, because as one lawmaker said, school administrators would be more honest in their evaluations if they’re not made public.

A few months later, a national report by the Bellwether Education Partners graded Tennessee down in part because the public is not allowed to see teacher evaluations.

Now, during the current legislative session, legislators will vote on legislation that would close public access to the Department of Safety’s gun permit database. This came as a direct result of the publication of details of a similar database in New York shortly after the horrific massacre of children and teachers at Sandy Hook Elementary School in Newtown, Conn.

So, why does this database need to be secret for roughly 350,000 gun permit owners who represent about 5 percent of the state’s population? A variety of answers have been offered, most of which include the right to privacy of gun owners.

Some fear that burglars will access the database for information so they can steal weapons from home of permit holders. But the Tennessee database has been open to the public since 1996 and there is no evidence that burglars have taken advantage of it. In fact, some gun owners want criminals to know they are armed as a deterrent.

So why was the public database created in the first place?

Before the Department of Safety was tasked with creating and maintaining the gun carry permit information, such permits were issued by sheriff’s offices in all 95 counties. And in a significant number of cases, gun permits were given as political favors without regard to safety training or background checks. And the permits were kept secret as a rule.

The current legislation in Tennessee to close gun permit records is a direct reaction to the newspaper publication of names, addresses in New York.  It was legal since the information was a matter of public record, but was it wise? Probably not, considering that the New York General Assembly subsequently closed the records.

Similar legislation has also passed in Mississippi and Virginia.

But the impulse to “solve” problems through secrecy is in itself dangerous.

This legislation is part of a very troubling trend to deny public access to more and more public records. Since the passage of the Tennessee Public Records Act of 1957, more than 350 exceptions have been created through legislative action.

Who gains from closing public records? Generally, special interests.

Too many lawmakers seem to think that government information belongs to them to do with as they will, rather than to the public. With each successive exception to the Public Records Act, citizens are less able to monitor what their elected “servants of the people” and their fellow citizens are doing.

Just witness the ongoing story of the Department of Children’s Service or the continuing saga of confidential teacher evaluations as examples of losing freedom of information gradually.

And, finally, consider the longstanding motto of the Johnson City Press: “What the people don’t know will hurt them.”

Kent Flanagan is executive director of the Tennessee Coalition for Open Government. He can be reached by phone at (615) 957-2825 or email at kent.flanagan@gmail.com.