We have been following SB 1246 as it makes its way through the Florida Legislature. Recall from prior posts that Senator Jim Norman (R-12) introduced what we dubbed the “Florida Felony Farm Photography Bill” a few months ago. As it was originally introduced, SB 1246 would have made it a first-degree felony to trespass onto a farm or to take photographs of a farm without the written consent of the farm’s owner.
The bill was aimed at combatting the efforts of groups such as the Humane Society of the United States who seek to expose what they consider to be cruel conditions on farms.
As originally introduced, though, the bill was overbroad. That is, the bill went so far in trying to prohibit certain conduct (photographing farming operations) that it would also have infringed on free speech. For instance, the original text of the bill would have criminalized the mere act of photographing or making a video of a pastoral scene from one’s car or the public sidewalk.
And even if the bill did not suffer from overbreadth in its original incarnation, it was still ridiculously punitive. Generally speaking, a first-degree felony is punishable by up to 30 years in prison under Florida law.
Revisions to the Bill
A Staff Analysis of the bill prepared on March 8, 2011, noted the very concerns we have been discussing here, namely lack of scienter and overbreadth. The Analysis stated, “This bill does not take into account the intent of any violators of the statute nor does it create any exemptions such as for emergency response personnel, those touring a farm or those trespassing on a farm unintentionally.” The Analysis also found, “There may be potential First Amendment issues with the bill as written because the bill does not require that the offender actually be on private property to be guilty of photographing, etc., without the written consent of the owner.”
SB 1246 has now been substantially revised. It now provides that any person except a law enforcement officer or an employee or agent of the Department of Agriculture and Consumer Services acting under the law who enters a farm and produces an audio or photographic record without the owner’s written consent commits a first-degree misdemeanor.
So, the revisions addressed most of the concerns noted in the Staff Analysis. Specifically, the revised SB 1246:
- Creates an exception for law enforcement and Department of Agriculture personnel; and
- Requires that violator actually be on the farm property while making the audio or photographic record of the farm’s operations.
Moreover, and quite significantly, the current version of SB 1246 knocks a violation from a whopping first-degree felony down to a first-degree misdemeanor.
Nevertheless, the revised version of SB 1246 still arguably lacks a scienter element. That is, there is no requirement that a person willfully enter the farm and take photographs without permission. A person could accidentally stray onto a farm while on a hike, for example, and end up breaking this law.
If it passes, SB 1246 will take effect July 1, 2011.
Senator Jim Norman can be contacted at (813) 265-6260 or (850) 487-5068. His e-mail address is firstname.lastname@example.org.