"Ag-Gag" Bagged?

September 26, 2015 02:08 AM
"Ag-Gag" Bagged?

One of the most controversial legal issues involving agriculture in recent years has been efforts to pass state legislation targeting undercover investigations by animal activist groups. Derided as “ag-gag” laws, these legislative proposals seek to criminalize undercover investigations and whistle-blowing employees at agricultural operations. In general, these laws criminalize obtaining employment under false pretenses and making audio-visual recordings of potential acts of animal abuse. Some laws also criminalize the failure to report observations of animal abuse in a timely manner.

These laws, which have been passed in Idaho, Iowa, Kansas, Missouri, Montana, North Carolina, North Dakota and Utah, are a response to animal rights activists’ use of undercover investigators and videos to draw attention to animal agriculture. The release of these undercover videos has caused substantial damage to the reputation of our animal agriculture industry. Some videos have exposed real acts of animal abuse and mistreatment. However, these videos are often highly edited and sensationalized so outlier incidents of animal abuse appear to be the norm in livestock and poultry production.

While the motivation behind “ag-gag” laws is understandable, these laws present a number of legal challenges, namely the First Amendment. Few things are held more precious in our society than the right to free speech and expression. America restrains itself from stifling free speech, even when it is offensive. Attempts to outlaw vile protests at a war hero’s funeral or burning the American flag have been struck down on First Amendment grounds.

Such was the fate of Idaho’s law. In August, Chief Judge B. Lynn Winmill ruled Idaho’s law violated the First Amendment by unlawfully targeting speech based on both its content and viewpoint. He also held it violated the Constitution’s Equal Protection Clause because “it was motivated ... by animus toward animal welfare groups ... and impinges on free speech, a fundamental right.”

Chief Judge Winmill criticized Idaho’s law as seeking “to limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values.” He noted Upton Sinclair’s undercover research in the meatpacking industry, which led to his publishing of “The Jungle.” The classic book served as the catalyst for the Federal Meat Inspection Act and Pure Food and Drug Act, yet it would have been criminalized under Idaho’s statute. 

Idaho can appeal Judge Winmill’s decision, but it is unclear if the law would fare any better at the appellate level. A similar law in Utah is currently being challenged. If other courts reach a similar conclusion, then the option of using “ag-gag” laws to combat undercover investigations will be off the table.

That is not to say farming operations are helpless in the face of potential undercover investigations. State laws provide criminal and civil remedies for trespass, fraud and theft. Defamation laws also provide civil remedies that might protect against untruthful statements or depictions that cause economic and reputational damages. Farms can also screen potential employees, conduct background checks and draft employment contracts in a manner that guards undercover investigations.

However, the best defense against undercover investigations is to ensure animal abuse doesn’t occur in the first place. Workers handling animals should be trained in proper handling techniques and should be corrected when protocols are violated. These workers should be properly supervised. Employees should also feel comfortable in reporting suspected animal abuse with management. Ensuring animal care is a top priority on your farm can go a long ways toward stifling activists. 

This column is not a substitute for legal advice. 

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