Are “Ag-Gag” Laws Constitutional?
By John Alan Cohan, Attorney at Law
“Ag-gag” is the term used to describe anti-whistleblower laws that apply within the agriculture industry. About half a dozen states have passed laws to criminalize surreptitious filming of alleged abuses of animals on farms and ranches. These laws are an attempt to prevent undercover investigative reporting or whistleblowing by employees, and to suppress the use of the videos to build support for stronger penalties for the abuse of cows, chickens, hogs or other animals. Ag-gag laws are justified as a way of preventing interference with agricultural production.
The bills have been met with stiff and growing opposition in many states, where the proposals have been defeated, including California, New York, Florida, Minnesota, Nebraska, Illinois and others. These laws have been criticized by various groups, arguing that they are intended primarily to censor animal welfare abuses by the agriculture industry from the public. At the same time, a new North Carolina law, the Property Protection Act, was enacted over the governor’s veto, and goes into effect in January, 2016.
Are ag-gag laws constitutional? A new ruling issued by the U.S. District Court in Idaho held such a law to be unconstitutional as a violation of the First Amendment: “Although the State may not agree with the message certain groups seek to convey about Idaho’s agricultural production facilities, such as releasing secretly recorded videos of animal abuses to the Internet and calling for boycotts, it cannot deny such groups equal protection of the laws in their exercise of their right to free speech.” (See decision by Judge B. Lynn Winmill in Animal Legal Defense Fund v. C.L. Butch Otter, Governor of Idaho.)
The court held Idaho’s ag-gag law, which created a new crime, “interference with agricultural production,” to be unconstitutional primarily on First Amendment grounds in that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.
Under the Idaho law, like those in other states, a journalist or animal rights investigator could be convicted for not disclosing his media or political affiliations when requesting a tour of an industrial feedlot, or applying for employment at a farm. And an employee could be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission.
These laws are thought to stifle public debate about abusive practices that undercover investigations sometimes reveal. Supporters of the laws claim they are needed to protect members of the livestock and agriculture industries from “extreme activists who want to contrive issues simply to being in the donations.” One legislator in Idaho said that “The most extreme conduct that we see threatening Idaho dairymen and other farmers occurs under the cover of false identities and purposes. Extremist groups implement vigilante tactics to deploy self-appointed so-called investigators who masquerade as employees to infiltrate farms in the hope of discovering and recording what they believe to be animal abuse.”
The judge’s ruling overturning the Idaho law stated that the law seeks to limit and punish those who speak out on topics relating to the agricultural industry, “striking at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance. Indeed, private party media investigations, such as investigative features on 60 Minutes, are a common form of politically salient speech.”
The court added: “Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.”
The court held that existing laws against trespass, fraud, theft, and defamation are adequate to protect livestock facilities “without infringing on free speech rights.”
This ruling is a very important First Amendment case, and is likely to end up in the Supreme Court.
John Alan Cohan is an attorney who serves the horse, livestock and farming industries. He can be reached at: (310) 278-0203, or email at firstname.lastname@example.org. His website is JohnAlanCohan.com.