BY JEFF ZALESIN
For years, opponents of so-called ag-gag legislation across the country have been saying that it is unconstitutional to pass laws aimed at restricting hidden-camera reporting on factory farms.
Soon, they’ll tell it to a federal judge in Utah.
A coalition of journalists and animal-rights activists, led by the Animal Legal Defense Fund and People for the Ethical Treatment of Animals, have filed a lawsuit to invalidate Utah’s ag-gag statute, which makes it a crime to photograph an agricultural operation without the owner’s consent or to gain agricultural employment under false pretenses.
“In essence, the law criminalizes undercover investigations and videography at slaughterhouses, factory farms, and other agricultural operations, thus ‘gagging’ speech that is critical of industrial animal agriculture,” their complaint states. “In doing so, the statute violates the First Amendment, the Supremacy Clause, and the Fourteenth Amendment of the United States Constitution.”
If the court agrees, it would be a significant victory for the whistleblower-rights lobby. Measures hostile to undercover exposés on farms have failed this year in state legislatures across the country.
AP Photo provided by Humane Society of the United States
In this 2010 video image a Hallmark Meat Packing slaughter plant worker is shown attempting to force a “downed” cow onto its feet by ramming it with the blades of a forklift in Chino, Calif. The ag-gag bill, opposed by the California Newspaper Publishers Association, failed to pass in the state this year.
As Amanda Hitt of the Government Accountability Project put it, the pro-transparency fighters have been “winning the boxing match.”
But ag-gag is not down for the count just yet, as laws remain in force in several states and proponents of unsuccessful bills plan to try again. And if a bill proposed in North Carolina is any indication, future bills may not be limited solely to agriculture.
A year of setbacks for ag-gag
According to Matthew Dominguez, a policy expert at the Humane Society of the United States, six states have passed some variety of ag-gag law since Kansas became the first in 1990. If supporters of the movement had their way, that total would have more than doubled in 2013.
Instead, opponents of the restrictive law have had their most accomplished year to date. All of the year’s ag-gag proposals were withdrawn, vetoed or stalled.
Meanwhile, the ag-gag movement was soaked with a wave of negative publicity, including editorials in The New York Times and the Los Angeles Times as well as a biting segment on The Daily Show with Jon Stewart and countless blog posts.
One particularly blogged-about incident was the case of Amy Meyer, a Utah animal-rights activist who became the first person charged with violating an ag-gag law after she filmed a slaughterhouse from the street. The story went viral after journalist Will Potter, now one of the plaintiffs in the Utah lawsuit, wrote about it on his website, GreenIsTheNewRed.com.
The prosecutor dropped the charge just before trial, concluding that Meyer did not break the law because she was standing on public property. The timing of the announcement prompted speculation about whether the Utah authorities were caving to public pressure.
Meyer, also one of the Utah plaintiffs, suggested in an interview that her case might have influenced Tennessee Gov. Bill Haslam, a Republican, who vetoed his state’s ag-gag bill in May.
“It was such an utter failure that maybe he realized that this is the kind of controversy that he could be stepping into if they allow this law to happen in Tennessee,” Meyer said.
Both houses of the Tennessee legislature this year approved a bill requiring investigators to turn over images and videos of animal abuse to the authorities within 48 hours or by the end of the next business day.
Proponents argued that this rule would help to prevent animal cruelty by allowing officers to investigate it quickly.
“They’re not prohibiting you from speaking up but rather mandating that you do so,” said Animal Agriculture Alliance spokeswoman Emily Meredith of quick-reporting laws, which have been proposed in several states and enacted in Missouri.
But detractors said that these laws are veiled attempts to choke off the investigative reporting process, which invariably takes more than two days.
While Haslam was considering whether to sign the bill into law, Tennessee Attorney General Robert E. Cooper issued a non-binding opinion concluding that the measure was “constitutionally suspect under the First Amendment.” He wrote that the bill was “underinclusive relative to the governmental interest in preventing cruelty to livestock,” and he suggested that it might impose “an impermissible prior restraint” or “an unconstitutional burden on news gathering.”
In a footnote, he added that it was unclear whether the bill could be reconciled with Tennessee’s shield law, which protects journalists’ newsgathering materials.
When Haslam announced that he would veto the bill, he cited Cooper’s concerns about its constitutionality and its effect on the shield law. He did not mention country star Carrie Underwood, who in April tweeted, “If Gov. Bill Haslam signs this, he needs to expect me at his front door.”
‘All eyes are on Utah’
Haslam’s veto was a major victory for ag-gag opponents, but a federal court ruling striking down the Utah statute would be much more significant.
Dara Lovitz, a legal scholar who has criticized ag-gag laws, said that the legal impact of such a decision could spread far beyond Utah. “I think other courts would look to how Utah is handling it, so I think all eyes are on Utah right now,” she said.
Dominguez said a ruling against the law could have an influence on state legislatures as well as courts.
“It would absolutely add to the mounting opposition to these bills and hopefully persuade supporters of these types of measures not to reintroduce next year,” he said.
Meredith said her organization, which supports ag-gag legislation but prefers the term “farm protection,” is monitoring the Utah case.
According to Meredith, laws like Utah’s are not only constitutional but necessary. The problem, she said, is not that farmers have something to hide. It’s that activists have taken “disingenuous, deceptive and manipulative actions” in order to produce videos that promote a vegan agenda, sometimes compromising the safety of the food supply in the process, she said.
“If they’re getting hired for the purpose of sneaking in and trying to obtain some damaging footage of the industry, these farm families need protection from that because these groups really are seeking to destroy their way of life,” she said.
Stewart Gollan, one of the lawyers representing the plaintiffs in Utah, said his clients are not arguing that trespassing should be legal. The First Amendment problem with the ag-gag statute, he said, is that it singles out a group of people for harsher treatment under the law based on what they intend to say.
“I certainly think that the intent behind the ag-gag law was not to prevent trespass against certain kinds of businesses that are particularly subject to trespass,” he said. “I think it was to specifically prohibit the gathering of information for use in public political dialogue against a very particular industry.”
Meredith, however, drew a distinction between speech by professional journalists and speech by animal activists. She accused the latter group of peddling “a false narrative” in hopes of convincing viewers to donate to their organizations.
“They’re not doing this just to help people understand about the industry just like journalists are,” she said. “They’re doing this to pad their own pockets.”
But Potter said in an e-mail that ag-gag laws target journalists as well as animal activists.
“These laws do not exempt journalists, because journalists are seen as part of the threat to this industry,” he said.
As a reporter, Potter said, he could face prosecution for going undercover on a farm in an ag-gag state, either alone or accompanied by an activist.
“More broadly, though, ag-gag puts my sources at risk of prosecution for speaking with me or providing me their footage,” he added. “No journalist should have to choose between not reporting a story that is of national concern and putting a source in jail.”
Joshua Frank, managing editor of the political newsletter CounterPunch, said that if state legislatures can pass ag-gag laws, by the same logic they could prohibit reporters from investigating claims of child abuse at a daycare business. CounterPunch is a plaintiff in the Utah case.
“We’re hopeful that if this law is shot down, journalists will have better access to reporting on such industries, and the workplace more generally outside of agriculture,” Frank said.
Ag-gag supporters remain committed, adjust strategy
Proponents of ag-gag legislation are likely to keep up their efforts as state legislatures return from their summer recesses. Meredith said that groups affiliated with her organization will push for a new version of the Tennessee bill to be introduced.
“I think that what you’ll see when the Tennessee legislature reconvenes is that bill will be reworded and reformulated and then presented again,” she said. “I think it will pass again by an overwhelming majority in their legislature and then hopefully the governor will side with American farmers and ranchers.”
According to Hitt, agribusiness executives know that ag-gag policies are unpopular, so they have lately begun to cloak their proposals in clever disguises.
“There’s a lot of ways that this is sneaky, that this nefarious thing can ooze its way into someone’s statehouse,” she said.
For example, she said, one bill proposed this year in North Carolina does not present itself as an ag-gag but turns out to be “a different manifestation of the same thing.”
Like many ag-gag bills, the proposed Commerce Protection Act has provisions to punish undercover investigators who falsify employment applications and fail to turn over their recordings to the authorities. But unlike those bills, this one would apply to all industries—an expansion that Hitt called “draconian.” The North Carolina Chamber of Commerce, which represents both agricultural and non-agricultural businesses, has backed the bill.
The Commerce Protection Act did not pass before the North Carolina legislature recessed for the summer, but similar bills may appear in the next few months.
“I suspect we’ll see more of that type of approach from the industry into next session,” Hitt said.