Another argument in favor of counting video recordings as language is that the only conceivable reason for the government to regulate such recordings in almost all circumstances must necessarily be to prevent the content of the recording from being viewed by the recorder or by third parties. As some First Amendment theorists have argued, free speech can be best understood by examining the government`s justification for regulation. 123,123 See, for example, Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 443–505 (1996) (recalling that the true purpose of content-based inquiry is to identify inappropriate grounds that suppress language); see also Alan K. Chen, Statutory Speech Bubbles, First Amendment Overwidthth, and Improper Legislative Purpose, 38 Harv. C.R.-C.L. Rev. L. 31, 85–87 (2003) [hereafter, Chen, Statutory Speech Bubbles] (asking courts to use First Amendment analysis to determine the motive for government regulation).
Professor Larry Alexander, for example, suggests that “freedom of expression is involved whenever an activity is suppressed or punished to prevent the receipt of a message.” 124 124 Alexander, supra note 32, p. 9; see also Koppelman, op. cit. cit., note 32, p. 722 (describes the purpose of consumer protection laws as limiting the message and not dependent on the subjective intention of the producer). Close This article examines the constitutional theory and doctrine applied to emerging government regulation of video capture in a range of regulatory systems. It proposes a framework that fully promotes freedom of expression without presenting unnecessary interference with legitimate interests in data ownership or protection. The article first argues that video recording is a form of expression, or at least behavior that serves as a necessary precursor to expression, so it is considered speech under the First Amendment. He continues with the new argument that none of the characteristics that make video recording a form of expression apply differently when the recording takes place on private property. The article then examines the circumstances in which video recordings are constitutionally protected.
He argues that video recordings in public places or on private property, with the consent of the recording, are likely protected speech under the First Amendment. However, it also argues that the right to registration exists even if the registration is not consensual and takes place on private property, as long as the recorded material is of public interest and is carried out by a person who is lawfully resident on that private property. This is not to say that any regulation of these documents violates the First Amendment, and so the section deals with cases where conflicting government interests, including material property interests and reasonable expectations of privacy, might justify restrictions on the right to register. Another important context in which video footage is targeted as “illegal” behaviour 13 13 Response of Defendant Wasden to Application for Partial Summary Judgment, filed on November 18, 2014 at 15, Animal Legal Def. Otter, 118 F. Supp.3d 1195 (D. Idaho 2014) (No. 1:14-cv-00104-BLW), 2014 WL 7530410, at *15 (“The purpose of the law is to protect agricultural production facilities from interference caused by illegal behavior.” (citing pp. 66-1337, 2d Reg.
Sess. (Idaho 2014))). Nearby are the so-called “ag-gag” laws, 14 14 The term “ag-gag” comes from food writer Mark Bittman. See Mark Bittman, Who Protect the Animals?, N.Y. Times: Opinionator (26 April 2011), opinionator. blogs.nytimes.com/2011/04/26/who-protects-the-animals/ (submitted to Columbia Law Review). Closures, which have become a top legislative priority for commercial food manufacturers across the country. 15 15 See Dan Flynn, Farm Protection is not “ag-gag”, says Animal Ag, spokesperson for Animal Ag, Food Safety News (30. January 2013), www.foodsafetynews.com/2013/01/call-it-farm-protection-not-ag-gag-says-animal-ags-spokeswoman/ [perma.cc/443M-SKHB] (explains agribusiness pressure on agricultural gag laws in various states); See also Debate: After activists secretly denounced animal cruelty should they be targeted by “ag-gag” laws?, Democracy Now! (9 April 2013), www.democracynow.org/2013/4/9/debate _after_activists_covertly_expose_animal [perma.cc/4XX3-6FWK] (demonstrates the agricultural sector`s advocacy for agricultural gag legislation).
Close Model legislation prepared by the American Legislative Exchange Council (ALEC) 16 16 It was reported that the CFTA had been instrumental in the development of the model legislation on agricultural gag orders. See Will Potter, “Ag Gag” Bills and supporters have close ties to ALEC, Green is the New Red (Apr. 26, 2012), www.greenisthenewred.com/blog/ag -gag-american-legislative-exchange-council/5947/ [perma.cc/7KS2-2RG2]. Close criminalizes the act of non-consensual audio or video recording on the premises of slaughterhouses, factory farms, and other industrial meat processing plants, and state laws tend to follow this pattern. 17 17 See, e.g., Idaho Code § 18-7042 (Supp. 2015) (criminalization of non-consensual video or audio recordings of farms); Utah Code Ann. § 7-6-112 (LexisNexis 2012) (idem). A federal lawsuit against the Idaho and Utah laws is currently underway. See Animal Legal Def. Otter, 44 F. Supp.3d 1009, 1014 (d.
Idaho 2014), appeal filed, No. 15-35960 (9th Cir. 2015) (challenging Idaho law, which criminalizes covert investigations and videography in “farm facilities” on the basis of the First Amendment); Transcript of motions hearing at 89–90, 99, Animal Legal Def. Fund v. Herbert, No. 2:13-CV-00679 (D. Utah Sept. 8, 2014) (Denial of request for partial rejection on basis of First Amendment). On August 3, 2015, the U.S. District Court for the District of Idaho issued summary judgment in favor of the plaintiffs in the Otter case, declaring the Idaho Ag-Gag Act unconstitutional. See Otter, 118 f.
Supp.3d to 1212. The authors announce that they are acting as counsel for the plaintiffs in both cases. Another common feature of these laws is the criminalization of false statements as a means of accessing these places for the purpose of recording audio recordings or video images. See, for example, Iowa Code Ann. § 717A.3A.1.b (West 2013). In a separate article, the authors argue that the false statement provisions violate the First Amendment because lies used to facilitate the gathering of information on matters of public interest have significant speech value. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 Vand. 1435, 1447-51 (2015) (when lies deserve First Amendment protection). A third general provision required in some States is that any videotape of illegal activity recorded at such locations must be handed over to the State within twenty-four hours of receipt.