VETOED: Arkansas’ Bill SB-79 gets a thumbs down from Governor

by . March 31st, 2015

We have reported yesterday that the SB-79, a bill deliberated in the Arkansas State Senate with serious consequences for street photography got vetoed by Arkansas’ Governor Asa Hutchinson. According to Hutchinson, he cannot approve a bill that restricts free expression which have chilling effects on the freedom of speech and freedom of the press. On top of that he believes that the bill will also suppress Arkansans who engage in artistic expression.

Hutchinson also released a veto letter addressed to the Arkansas’ Senate President and its members. Below is Hutchinson

Dear Mr. President and Members of the Senate:

Pursuant to Article 6, Section 15 of the Arkansas Constitution, I write to inform you that today I have vetoed Senate Bill 79, which I have returned to you with this letter. I have done so because in its current form it is overbroad, vague and will have  the effect of restricting free speech.

SB79 grants a property right in the use of an individual’s name, voice, signature, photograph or likeness and makes this right freely transferable, assignable, and descendible. SB79 provides that this right continues through the individual’s lifetime and up to fifty (50) years after the individual’s death.  The intent of the bill is to “[p]rotect the names, voices, signatures, photographs, and likenesses of the citizens of the state from exploitation and unauthorized  commercial use without the citizen’s consent.”  However, the bill as drafted would extend protection beyond the stated intent of the bill, unnecessarily restrict free expression and may result in unnecessary litigation in Arkansas.

SB79 defines “commercial use” to include any use for advertising, fundraising or “obtaining money, goods or services.” While the intent is to protect citizens of Arkansas from unauthorized  commercial speech, the definition of “commercial use” to include any use for “obtaining money, goods or services” is too broad and vague.  This language may include speech beyond traditional commercial speech, including expressive speech produced for a profit. This would result in Arkansas having one of the broadest Rights of Publicity statutes in the country and making Arkansas the forum of choice for many litigants.

Additionally, while SB79 provides clear and explicit exemptions for certain types of noncommercial speech including news, public affairs, sports broadcasts and advertising for a political campaign, SB79 fails to extend an exemption to other forms of noncommercial  speech. Instead, SB79 provides that certain expressive works such as plays, books, magazines, newspapers, audiovisual work, and original works of art are only exempt to the extent they are protected by the First Amendment.  I believe the absence of a clear exemption for these types of expressive works will result in unnecessary  litigation in Arkansas courts and will suppress Arkansans who engage in artistic expression from photography to art work.

Moreover, the bill includes inconsistent language that makes it unclear whether a type of speech is completely exempt or is only exempt to the extent it is protected by the First Amendment. For example, SB79 explicitly exempts news and the promotion and advertising for a political campaign.  However, a “work of a political or newsworthy value” is only exempt to the extent it is protected by the First Amendment.  This ambiguity in SB79, and the lack of clear exemptions for certain types of expressive works, may have the effect of restricting and chilling constitutionally protected  speech.

Finally, SB79 includes broad jurisdictional  language to allow a party to file a civil action in any county where one or more defendants reside or a violation occurred. The broad jurisdictional  language allowing a civil action to be brought in any county where a violation occurred in combination with the absence of clear exemptions for certain types of expressive works goes beyond the stated intent of the bill, invites unnecessary litigation in Arkansas courts and encourages forum shopping.

I have received scores of letters from professional and amateur photographers in Arkansas who raise legitimate concerns about the bill and they request the language be amended so that they are not subject to substantial financial burdens in the conduct of their small businesses around the state.

Although I must veto SB79 for the reasons mentioned above, I wish to express my appreciation to its principal sponsor, Senator Woods. While I respect Senator Wood’s intent to protect the names, voices, signatures, photographs and likeness of Arkansas citizens, such as the Broyles family, from exploitation and unauthorized commercial use, I cannot support SB79 in its current form.”

Photography groups can take a breather for now but the battle is far from over. The bill is now up for revision and if the photography community does not stay vigilant it could still have negative implications. While we are on the subject of legislation and crazy bills, Kevin Raber of Luminous Landscapes has posted about Indiana’s newest act which is the Religious Freedom act which you can read here.