Is Idaho’s ‘Ag Gag’ Law a Template for Other States?

Published on: 10:55AM Mar 10, 2014

States that attempt to pass similar legislation are in for some very nasty business. Animal rights groups play hardball.

Idaho dairy and livestock farmers are probably sleeping a little more soundly after their governor, Chuck Otter, signed into a law a comprehensive law that offers stiff penalties for anyone who surreptitiously gains access and films farm operations.

Known as the Dairy Security Act, the bill covers wrongful entry and criminal trespass onto farms, theft of records, obtaining employment by wrongful means, taking recordings of workplace activities without the owner’s consent and intentionally interfering with the farming operations. It’s clearly targeted toward animal rights groups.

If convicted, individuals face up to $5,000 in fines, a year in jail and financial judgments of up to twice the economic damage they caused, says Bob Naerebout, executive director of the Idaho Dairymen's Association. And, under Idaho "aiding and abetting" laws, organizations that employ such offenders can also be held liable.

The bill had strong legislative support, clearing the Idaho House of Representatives on a 56-14 vote. It passed the state Senate 25-10. That gave Governor Otter political cover, who came under intense pressure to veto the bill from animal rights groups and even Chobani, to sign it into law. The questions are:

1) Will the law hold water?
2) Can it be an effective deterrent to undercover filming?
3) Could it be a template for other states to emulate?

I ran those questions by Amy Bruchs, an attorney and partner with Michael Best Friedrich LLP, a law firm based in Wisconsin. Bruchs specializes in employment, labor and litigation, and has more than 20 years of legal experience in these areas.

Bruchs believes the law is sound. "Unless there are some over-riding ‘whistle blower’ protections [from other laws or regulations], it would be enforced by the courts," she believes.

For example, workers have Occupational Safety and Health Administration whistle-blower protection if they report a work safety violation, Bruchs says. But no such protection currently exists under animal welfare laws, even if an illegal act of animal cruelty occurs, she says.

"At the same time, I wouldn’t be surprised to see a court challenge to the Idaho law, or an attempt at the national level to pre-empt such laws," she says.

Some producers also fear Idaho dairies could still be targeted by undercover activists to suggest abuse is still occurring and to challenge the law. Remember, these groups have deep, deep pockets and are lawyered up. To them, $5,000 fines are pocket change. (Ellen DeGeneres’ celebrity tweet from the Oscars raised $1.5 million for the Humane Society of the United States.)

States that attempt to pass similar legislation are also in for some very nasty business. Animal rights groups play hardball. In Idaho’s case, Mercy for Animals released additional, gruesome video of alleged abuse on one of the state’s largest dairies. It didn’t matter that the dairy had already made amends to its animal welfare protocols and practices, fired the workers involved and even cooperated with authorities in their prosecution.

I’m not saying dairy and livestock groups shouldn’t attempt to enact similar dairy security protections in their own states. There might be windows of opportunities to get this done in states such as Wisconsin that have Republican control of both the legislature and governorship. But dairy and livestock groups need to go into these fights with eyes wide open. It will be a nasty, brutal fight.

The best protections for individual farms are no-exception adherence to industry-sanctioned animal welfare protocols and scrupulous hiring practices. I’m not naïve enough to believe that even this offers 100% protection. For now, though, it’s the best you’ve got.

You can read more on animal care guidelines here

And you can read about suggested downer cow handling protocols here.