New Supreme Court Case Threatens Legal Protections for Animals
Law & Policy•5 min read
So called "ag-gag" laws criminalize elements of undercover investigations like taking photographs and recording video in factory farms.
Words by Hemi Kim
In September of this year, an Iowa federal court struck down a law passed by the Iowa legislature in 2021 that made it illegal to record audio or video while trespassing on private property. It was the fourth recent challenge to so-called “ag-gag” legislation in the state, laws passed to target undercover investigations into factory farms. Ag-gag laws have been around since the 1990s, a decades-long industry effort to suppress investigations of slaughterhouses and intensive animal farming operations. These laws are typically unpopular in state polls — and a 2012 nationwide survey found that almost two-thirds of respondents opposed them. What’s more, critics say ag-gag laws suppress free speech and threaten democracy.
The term “ag-gag laws” refers to state and federal laws that make it a crime for people to take photos or videos inside animal agriculture operations. The Center for Constitutional Rights and Defending Rights and Dissent define an ag-gag law as having at least one of the following three elements: 1) a prohibition against photography, video recording or other document collection; 2) a prohibition against “misrepresenting oneself in order to gain access to an animal agriculture facility”; and 3) requiring individuals to report animal cruelty to authorities within a short time period of witnessing the event.
Though the third element of ag-gag laws listed above — quick reporting of animal cruelty — seems like it should benefit animals, the effect is to make it an offense for activists and journalists to keep information to themselves to build a case against animal agriculture businesses demonstrating patterns of ongoing abuse, allowing the industry to dismiss individual violations as one-off cases.
Ag-gag laws are accompanied by punishments that include jail time and monetary fines.
In the United States, agricultural industry interest groups spearheaded the passage of the first ag-gag laws in the 1990s as an effort to shut down public exposés of animal cruelty and abuse by animal rights activists.
A second wave of ag-gag laws since 2011 was passed after a series of exposés documented unsanitary conditions and animal cruelty in industrial farming facilities, and a growing general consumer concern over food production. These legal efforts were spearheaded by the food and farming industry interests, backed by the American Legislative Exchange Council, a conservative organization that brings together legislators and business groups and shares model legislation for states. Ag-gag laws have even expanded their reach to discourage whistleblowers and journalists within and beyond the animal agriculture industry. They threatened to prevent individuals from appealing to the public and the government for redress for patterns of wrongdoing in any field of business — including daycare centers, hospitals, nursing homes and on public lands.
Ag-gag laws have been found to violate the First Amendment thanks to the limits placed on free speech of public concern. The laws have also been described as targeting particular political groups of people — animal rights or environmental activists — which is why some legal experts argue these laws violate the Equal Protection Clause of the U.S. Constitution.
According to their critics, ag-gag laws are dangerous because they threaten free speech and democracy, singling out the animal agriculture industry for special protection while targeting whistleblowers for exposing hazards caused by businesses.
Some observers have raised concerns that ag-gag laws could prevent workers from taking part in federal surveillance of animal products designed to keep consumers safe. Though the federal Safe Meat and Poultry Act of 2013 contains whistleblower protections for meat and poultry production workers, state ag-gag laws could conflict with these federal whistleblower protections if workers collected and shared information about food safety without their employers’ permission, according to a report by public health researchers Caitlin Ceryes and Christopher Heaney.
At the heart of ag-gag laws is an attempt to prevent the undercover reporting by activists and journalists that has done so much to make the public aware of the way that animals are farmed in industrial farming facilities. This reporting has been instrumental in creating both public pressure for systemic change and in getting existing laws on animal cruelty enforced.
In 1981, People for the Ethical Treatment of Animals (PETA) dispatched Alex Pacheco, its co-founder, to work at a federally funded research laboratory. Pacheco took photos of the conditions in which the monkeys there were confined. As a result, an animal researcher was convicted of animal cruelty and the lab’s funding was suspended. PETA’s undercover investigation contributed to the passage of major amendments to the Animal Welfare Act in 1985.
Consumers want to know how farmed animals are treated and how their food is grown and produced. But the industry has pushed back by passing ag-gag laws. According to a 2015 article in the Seattle University Law Review, these laws are part of a food and farm industry effort to resist consumer demands for transparency. As Negowetti explains, the response from animal agriculture companies has been to shut down negative reporting while at the same time trying to appear as if they are listening to public concerns.
The food law and policy scholars citing Negowetti argued that the First Amendment is critical for consumers to access information about how their food is made. Ag-gag laws prevent the functioning of the “marketplace of ideas,” which “includes significant space for everything that consumers believe about what they should eat and how food should be produced — ideas that often inspire fierce debates, social movements, and even new laws.”
Ag-gag laws can harm the rights of workers, making them more cautious of exercising their First Amendment rights by exposing them to legal action if they provide full descriptions of their workplaces and working conditions. A significant portion of agriculture workers are undocumented immigrants, higher than any other industry, which means that they work in conditions that make them even more vulnerable to exploitation and self-censorship. Ag-gag laws do little to relieve workers of fears of deportation for reporting on their employers’ poor labor practices or food safety violations, according to a 2019 Wake Forest Law Review article by legal scholar Shaakirrah R. Sanders. Instead, ag-gag laws can restrict the free speech of food workers when discussing their views on food production, business operations and working conditions, while granting full control of this type of nonproprietary information to agribusinesses alone.
Sanders wrote that “a core tenant of the First Amendment is that speakers should not ‘fear physical or economic retribution solely because of what they choose to think and publish.’”
At the core of ag-gag laws is the threat to free speech, and particularly freedom of the press, including journalists’ rights to expression with tools like photography, video recording and undercover investigations. Undercover journalists must sometimes misrepresent who they are in order to get access to spaces where some wrongdoing or abuse is unfolding, unbeknownst to the public. In addition to the Chicago meatpacking plants exposed by Upton Sinclair when he worked incognito in the early 20th century, journalists have been celebrated for their covert documentation of mental hospitals, Medicaid fraud, bookie parlors, the Vietnam War and the brutalities of the Jim Crow South. Most recently, cellphone recordings of police shootings and police brutalities are examples of video footage that have validated the efforts of activists seeking to address racial profiling.
Ag-gag laws have the potential to stop journalists from working undercover in various ways, for example recording nonpublic areas of factory farms or slaughterhouses while working as an employee. Before it was struck down, Idaho’s ag-gag law even prohibited misrepresentation of one’s political affiliations when applying for work with an agricultural company.
The most recent versions of ag-gag laws remove the “ag” and target whistleblowers in all industries, taking a particular aim at environmental data collection, according to the Center for Constitutional Rights and Defending Rights and Dissent. Wyoming passed a law in 2015 that contested the right of individuals to collect water samples from open land and submit data from the samples to state or federal authorities to protect the public under the Clean Water Act.
The Wyoming Farm Bureau Federation supported this “data trespass” law, which was ultimately defeated in court and ruled unconstitutional.
Ag-gag laws try to hide questions about how agribusinesses treat farmed animals, the environment, their workers and public health.
Ag-gag laws follow a pattern of being enacted after animal rights activists reveal footage of animal abuse at agricultural facilities. The laws are an attempt to prevent future documentation of such mistreatment.
Six states currently have ag-gag laws in place in October 2022, though many more legislatures have proposed ag-gag bills that were ultimately defeated. Some states passed ag-gag laws that were ultimately found to be unconstitutional in court.
Alabama is an outlier state in that its ag-gag law was the only one enacted in between the first and second wave of ag-gag laws. The 2002 Farm Animal, Crop, and Research Facilities Protection Act, prohibited theft of records and other materials from animal facilities, and use of such records by third parties, including the media.
In 2017, the governor of Arkansas signed an ag-gag law that targeted whistleblowers in all industries. The law gave employers a civil cause of action (not a criminal one) against employees who exceed their authority to act in nonpublic areas of a commercial property. Exceeding one’s authority as an employee included placing an unattended camera to record the premises and gathering documents that damaged the employer.
It is unlikely that employers would authorize their employees to record wrongdoing that is sanctioned by the company. Thus the law effectively criminalizes whistleblowers who use video footage by classifying them as people who “exceeded” their authority.
Following a PETA investigation of a pig farm in Iowa in 2008, six workers pled guilty to criminal livestock neglect. Prior to this investigation, only seven people had ever been convicted of animal cruelty in the meat industry. The international publicity following this event led the Iowa legislature to pass a first ag-gag bill in 2012, with the support of many organizations representing Iowa’s animal agriculture sector.
The 2012 Iowa ag-gag law was struck down in 2019, while a second is currently under review. A third Iowa law aimed at criminalizing undercover investigations was declared unconstitutional by the U.S. District Court for the Southern District of Iowa in September 2022.
Missouri’s legislature passed an ag-gag law as part of a larger farm bill in 2012. The new state law imposed a 24-hour mandatory reporting time for employees who videotape or digitally record the abuse or neglect of a farmed animal. The recording must be given to law enforcement with no editing or manipulation of the video. Conviction under this law could result in a misdemeanor and up to one year of time in jail and a $1,000 fine.
In 1991, Montana became one of the first states to pass ag-gag laws, along with Kansas and North Dakota, in response to exposés of agricultural industry practices that mistreated farmed animals. The Farm Animal and Research Facility Protection Act made it a crime to damage an animal facility and enter one to take pictures by photograph or video recording “with the intent to commit criminal defamation.” If the individual caused “damage or destruction” worth more than $500, the person could be imprisoned for up to 10 years and fined up to $50,000.
North Dakota’s legislature joined the first wave of ag-gag bills by passing its Animal Research Facility Damage Act in 1991. This ag-gag bill was one of three passed by states in response to a failed Congressional proposal in 1989 to make crimes against animal enterprises a federal offense. North Dakota’s bill made it a crime to damage or destroy an animal facility, release an animal from it, and take unauthorized pictures or video inside it. People who violate the law can be put in jail for up to 30 days and fined $1,500. Civil penalties can include “an amount equal to three times all actual and consequential damages and court costs and reasonable attorney fees.”
Ag-gag laws are one example of anti-whistleblower laws designed to protect industries and organizations from the actions of concerned employees and investigators who might want to alert the public or the authorities to wrongdoing. Groups like the Center for Constitutional Rights and Defending Rights and Dissent have joined with animal rights, free press, civil liberties, food safety, labor and environmental groups to fight ag-gag laws throughout the United States.
Ag-gag laws restrict free speech by preventing journalists and activists from documenting how animal farms operate. The laws help agribusiness hide information that could help the public make better decisions about animal welfare, food production, worker safety and the environment. Check out Sentient Media’s Take Action page where you can learn more about ag-gag laws and World Press Freedom Day.
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