'Ag-gag' bill may run into constitutional problems, experts say

SALT LAKE CITY — Making videos of animal abuse on private farm property without permission will soon carry criminal penalties in Utah.

Gov. Gary Herbert signed HB187 into law on Tuesday, after a legislative debate that captured international attention as animal rights groups that lobbied against the bill claim it was unconstitutional.

University of Utah constitutional law professor Michael Teeter agreed: "I think there are some aspects of it that could pose some (constitutional) problems."

HB187 makes it a class B misdemeanor to trespass onto private livestock or poultry operations and record sound or images without the owner's permission. It also prohibits seeking employment with the intent of making those recordings. Leaving a recording device for that purpose would be a class A misdemeanor.

The bill is among an estimated 260 measures Herbert has signed that passed the 2012 session. Herbert has vetoed one bill — HB363 — the controversial sex education bill.

Sen. David Hinkins, R-Orangeville and co-sponsor of the Agricultural Operation Interference law, said he doesn't get the ruckus raised about the bill.

"I'm getting emails from France," he noted.

The legislative debate centered on unauthorized filming of argricultural operations by whistleblowers seeking to expose animal abuse, although no instances of such surreptitious filming have been known to occur in Utah.

"If a wife were abusing her husband, we wouldn't sneak into their living room and set up a hidden camera," Hinkins said. "We don't want people mistreating animals. … There are authorities they can contact. They don't need to be detectives or the Pink Panther sneaking around."

He explained that when people are on property without permission, it is a property rights issue. "In any other country, you could get shot for going on someone's property like that," Hinkins said.

That private property argument may be the bill's strongest defense, Teter said. 

Private companies are free to prohibit recording on their property as much as they wish, Teter said. Where HB187 may run into constitutional problems is in creating statutory criminal penalties against making those recordings.

Under First Amendment law, making sound or image recordings is widely considered to be freedom of speech, he explained. And courts have long held that that government may not restrict speech by singling it out according to its content — in this case, how animals are being treated on farms.

"Everyone knows that (legislators) were trying to target a particular kind of recording. I think that's pretty clear," Teter said.

Additionally, HB187 takes aim at speech that is clearly political, and under constitutional law, politically based speech gets the strongest First Amendment protection of all, he added.

If HB187 had merely prohibited the use of such video recordings in legal proceedings, or outlawed making any kind of recordings on private property without permission, it might have had a stronger constitutional case, Teter said.

Local attorney Brian Barnard, who has often sued the state over First Amendment issues, said he has not looked closely enough at the bill to decide if he would mount a challenge to it in court. "Now that it's been signed by the governor, we will take a look at it."

Because Herbert was returning from a trip to Washington, D.C., Wednesday, the governor was not available for comment, according to spokeswoman Ally Isom.