Farms and the 1st Amendment
Whenever the government tries to do anything that looks like it might tread into First Amendment territory, I tend to get a little concerned. As someone who talks and writes for a living, that whole free speech concept is pretty important to me. So my eyebrows arched a little when I started turning my attention away from the budget and toward Senate Bill 373, which would make it a crime to take videos or photos on a business or farm without permission if your intent is to defame or to directly or indirectly harm the business relationship between an agricultural or industrial operation and its customers.
Supporters of the measure say it is necessary to stop individuals from defaming farms and businesses with misleading videos and photographs. Under SB 373, a person who took a photo or video of the farm/industrial operation with the property owner’s written consent would be eligible for a Class A misdemeanor and get up to a year in jail and hit with a $5,000 fine. The penalty can avoided if the footage is turned over to law enforcement or a regulatory agency with 48 hours.
The legislation also creates the new crime of employment application fraud. It would be a Class A misdemeanor for lying on a job application, if your intent is to defame the employer or harm his or her business relationships.
This legislation has constitutional challenge written all over it.
As my friends at Cornell University will tell you, “The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech.”
SB 373 is clearly content driven. In addition, unlike other states that have criminal libel statutes in which the libel must have been proven, this legislation appears to go to the intent to commit libel or defamation. To prove libel you have to show the information was not only false, but the defendant knew it was false and it was done with the intent to harm the plaintiff. However, here is the catch: truth shall always be an adequate defense against libel and defamation. In addition, there are what’s known as conditional privileges against libel such as statements made for the protection of the interests of a third person or statements made for the protection of common interest.
And if you didn’t think that wast complicated enough, here’s some more legal food for thought. Some other defenses against libel and defamation include what’s called “substantial truth”. Under that doctrine, not everything the defendant said must be true. According to the digital media project, “minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the ‘gist’ or ‘sting’ of a statement must be correct.” In other words, if I say farmer Dave beat his animals with a steel rod, but he actually used a wooden rod, I can beat (pardon the pun) the libel accusation.
This is just a real quick primer, libel and defamation themselves are pretty complicated, adding “attempted libel and defamation” is going to be a real big mess that will eventually end up in court and someone is going to end up with slop on their face, and I am willing to bet the farm it won’t be the defendant.
