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Jean Maneke, an attorney for the Missouri Press Association, said the association has fought similar legislation for about four years. Maneke said the language in the bill might unintentionally criminalize journalists taking photos of farms from a plane in a public airspace or from a public highway.
"I'm not sure those who are pushing this have stopped to think about how this impacts journalists who are trying to do their jobs," she said.
Guernsey, the bill's sponsor, fumbled a bit when The Pitch asked how the bill could criminalize the publication of footage, in spite of the First Amendment.
"I guess, by de facto, if it's illegal to take it," he said, then paused and stopped himself. "Uh, no, that's not really a concern of mine — that's not the intent of the bill, to criminalize possession of an illegally produced videotape. But it would be illegal to produce it. I don't see the word 'possession' in that bill anywhere."
Except it was: "A person commits the crime of agricultural production facility interference if such person acts without the consent of the owner of an agricultural production facility, as defined in section 578.660, to willfully ... (2) Possess or distribute a record which reproduces an image or sound occurring at the facility which was produced as provided in subdivision (1) of this subsection [which makes undercover recording illegal]."
When the bill's language was read back to him, Guernsey backed up a bit and repeated that his intention wasn't to criminalize journalism, which he acknowledged has broad First Amendment protections.
"If only farmers had as much protection as journalists," he said.
Guernsey said two outside legal groups, which he wouldn't name, helped write the bill.
But the Missouri Press Association's Maneke was not impressed with the legislation's craftwork.
"I think this bill is not well-written and well-thought-out at all," Maneke said. She added, with a jab at Missouri's controversial term-limits law, "This is an indication of some of the problems you have when you see new faces in the Legislature."
A few days after Guernsey spoke to The Pitch, his bill — which had easily passed the House — disintegrated in the Senate's agriculture committee.
"Some of the senators on the committee raised concerns that the Missouri Press Association had raised," said Pat Thomas, chief of staff for Brian Munzlinger, ag committee chairman.
A proposed replacement bill cut almost everything except a watered-down provision that would compel farm employees to submit animal-abuse videos to law enforcement within 24 hours of filming — a far cry from Guernsey's criminal ban on publication. Thomas cited a "First Amendment problem" as the reason for the change, and when asked about the gap between the House's overwhelming vote and the Senate committee's complete demolition, she said, "The Senate is a more deliberative body."
As of press time, the future of the Senate's replacement bill was uncertain. However, Guernsey appears willing to die on this hill. In an e-mail to The Pitch, Guernsey wrote that he's trying to put his language back in — in this bill or a future one.
"I will be ammending [sic] all Senate Ag bills with my language," he wrote. "I do believe there is a good chance they will restore the language to the original bill. Most of it was stripped because of faulty information. It would have been a good idea if the powers that be had called me first and it would have been cleared up. oh well!"
HB 1860 is dead; long live HB 1860 — or at least until Guernsey hits his term limit. The clock is ticking. It expires in 2016.