First Amendment wins in legislative action


Following amendments in two state House committees, S.B. 373 – known as the Ag Gag bill – now contains no First Amendment or criminal defamation issues in the view of HSPA Executive Director and General Counsel Steve Key.

Originally, the bill authored by state Sen. Travis Holdman, R-Markle, would have made it a criminal act to share photos or video of agricultural, industrial or mining operations without prior consent by the owners.

Representatives of farming operations complained that videos uploaded online unjustly portrayed their businesses as being cruel to animals.

The bill as passed by the state Senate was opposed by HSPA, the Indiana Broadcasters Association, motion picture industry, animal rights groups, environmental groups and organized labor.

HSPA testified that remedies already existed for owners to deal with problems such as trespassing, burglary and libel. The association also pointed out that the language would not survive scrutiny in a legal challenge because it violated the First Amendment and argued against the introduction of the concept of criminal defamation to Indiana.

State Rep. Bill Friend, R-Macy, is the bill’s sponsor. He worked with state Rep. Don Lehe, R-Brookston, on an amendment for the House Agriculture and Rural Development committee, chaired by Lehe.

That amendment moved the point of the new crime from the dissemination of photos or videos to the physical act of pressing a shutter or record button on a media device in attempt to clear the First Amendment hurdle. However, that move left criminal defamation in the bill.

The committee passed that version of S.B. 373 with a vote of 9-3.

The changes apparently didn’t satisfy the concerns of House Republican leadership because Speaker Brian Bosma, R-Indianapolis, reassigned the bill to the House Judiciary Committee, chaired by Rep. Greg Steuerwald, R-Danville.

Steuerwald and a fellow committee member, state Rep. Jud McMillan, R-Brookville, crafted an amendment that was approved April 8 with a vote of 6-3.

The amendment eliminated all references to defamation from the bill.

S.B. 373 now strengthens two existing laws, one concerning criminal trespass and one concerning gaining employment under false pretenses.

Key testified before the committee to withdraw HSPA’s opposition based on the amendment. He said HSPA doesn’t encourage its members to break the law to get a story.

If a newspaper believes an undercover operation is the only way to reveal an injustice, then it must be prepared to pay the potential penalty for civil disobedience if reporters break the law.

There is a long tradition of journalists going undercover to either report on violations of existing laws or on conditions that legislative bodies decided to act upon once it was revealed.

It’s generally a tactic of last resort but still remains one that can be considered.