Gov. Asa Hutchinson has vetoed SB 79, a bill that was intended to “protect the names, voices, signatures, photographs, and likenesses of the citizens of the state from exploitation and unauthorized commercial use without the citizen’s consent.”
After reviewing the bill, Hutchinson apparently agreed that the bill was too broadly written. In a statement, he said:
“In its current form, the bill unnecessarily restricts free expression and thus could have a chilling effect on freedom of speech and freedom of the press. In addition, SB79 exempts certain types of noncommercial speech while failing to exempt other forms of noncommercial speech. The absence of these exemptions could result in unnecessary litigation and suppress Arkansans who engage in artistic expression.”
The bill was authored by Sen. Jon Woods (R-Springdale) and Rep. Greg Leding (D-Fayetteville). Leding said earlier in the session that it was prompted by the family of Frank Broyles, concerned about the potential use of his likeness for commercial purposes.
But after the bill was passed by the legislature, photographers in Arkansas and elsewhere reacted with alarm, saying that the plain language of SB 79 could require anyone who uses any picture for any purpose that could conceivably be construed as “commercial” to get express written permission from every individual in the picture. The American Society of Media Photographers said of SB 79, “The implications of this bill are staggering. For example, an image showing recognizable people posted to the Internet for a use that would not require written consent anywhere else in the world could leave you open to a lawsuit just because someone in Arkansas could view it online.”
Here’s the governor’s full veto letter:
A quick explainer about veto power in Arkansas: A gubernatorial veto can be easily overridden by the legislature. All it takes is a simple majority vote of both houses, which a bill would have required in order to reach the governor’s desk in the first place. So, the legislature could override the governor and force SB 79 into law anyway.
However, overriding the wishes of the governor isn’t something the legislature does lightly, especially when they’re of the same party. It’s unlikely that a Republican General Assembly would defy a Republican governor just to pass SB 79, which is a bill of relatively little consequence.
On a high-profile bill like HB 1228, though, the political calculations are different. It’s entirely possible that if Hutchinson were to unilaterally veto such a significant piece of legislation without consulting with Republican legislators first, his own party might feel inclined to reject his wishes and overrule him with a simple majority vote. That would be quite an embarrassment, signalling that his control of the GOP caucus isn’t as solid as it might seem from the outside.
Hutchinson thrives on cautious, logical negotiation, not frontal confrontation. But as pressure builds on him to veto HB 1228, he’s in quite a dilemma. No surprise, then, that he’s seeking a compromise solution instead.