Detailed Discussion of Ag-gag Laws

I. Introduction

In 2008, a Humane Society of the United States (HSUS) undercover investigation into the Hallmark-Westland Meatpacking Company in California revealed widespread abuse of dairy cows and public health violations (Owners of Infamous Calif. Slaughterhouse Pay Millions to Settle Government Fraud Case, Humane Society of the United States (November 2013), available at http://www.humanesociety.org/news/press_releases/2013/11/Hallmark_settlement_112713.html?referrer=https://www.google.com/#). The investigation led to the largest beef recall in U.S. history, and to the demise of Hallmark-Westland. The company declared bankruptcy in 2008 after the video went public and, four years later, it was ordered to pay a judgement of $497 million in a lawsuit filed by HSUS. Though the judgment was symbolic (because the company was bankrupt) this was a precedent setting case, sending a strong message that farmed animal abuse is unacceptable. If an ag-gag law had been in place, however, the investigators would likely have been prosecuted instead of Hallmark-Westland.

A series of ag-gag laws were introduced in several states following the Hallmark-Westland investigation and similar undercover investigations into other industrialized farming operations (also known as factory farms). The term “ag-gag” was coined by New York Times writer Mark Bittman in 2011, and it refers to any law that punishes undercover investigators, employees, or other onlookers for recording images or sounds at an industrialized farming operation and subsequently distributing those recordings to the public (Who Protects the Animals?, The New York Times (April 2011), available at http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0).

This paper examines ag-gag laws and how they affect farmed animals, farming employees, industrialized farming operations, and individual rights. It will look at the history of ag-gag laws and how they have changed since becoming more prominent in 2011. Part II will explain the history of ag-gag laws and how they have become more prevalent due to undercover investigations into industrialized farming operations. Part III will examine modern-day (Post-2011) ag-gag laws at a greater depth; it will trace the evolution of ag-gag laws since 2011. Parts IV and V will explore the legal issues with ag-gag laws. Part VI concludes with a discussion on whether the ag-gag trend will continue and what forms it will take as it is introduced in other states.

II. Background: Pre-2011 Development of Ag-Gag Laws

A. Link to Ecoterrorism Laws

In the early 1990s, Kansas, Montana, and North Dakota passed laws labelled “ecoterrorism” or “agroterrorism” laws. (More States Considering ‘Ag-Gag’ Farm Protection Bills, Investigate Midwest (April 2013), available at http://investigatemidwest.org/2013/03/14/more-states-considering-ag-gag-laws-farm-protection-bills/). In the late 1980s, the industrialized hog industry expanded rapidly. With the increase in farming, animal rights activists faced growing concern about the health and welfare of farmed animals and the ecosystems surrounding the farming operations. This resulted in increased protest and activism that sometimes caused damage to industrialized farming operations. The laws were designed to deter animal rights activists from trespassing and causing physical property damage. They criminalized entering the premises of industrialized farming operations without permission and destroying or damaging property. Though this was the primary intent of these ecoterrorism laws, all three also contained language criminalizing recording at industrialized farming operations that is very similar to some of the modern-day ag-gag legislation.

Kansas’ law, referred to as the “Farm Animal and Field Crop and Research Facilities Protection Act” criminalizes recording without consent of the facility owner with an intent to cause damage. Montana’s ag-gag provision in its ecoterrorism law is similar; it banned recording images for those with an “intent to commit criminal defamation.” Finally, North Dakota’s law banned all recording when done without consent of the owner. Several modern-day ag-gag laws have been modeled after these early “recording-ban” type ecoterrorism provisions.

B. Shifting Focus of Ag-gag Laws

Post-2011 ag-gag laws have shifted away from preventing property damage to focusing primarily on banning recording in an effort to curb resulting economic damage. Similar to the 1990s ecoterrorism laws, these laws were passed in response to activities by animal rights activists that resulted in catastrophic damages (Wave of “Ag Gag” Bills Threaten Food Safety and Freedom of the Press, The Center for Media and Democracy’s PR Watch (March 2013), available at http://www.prwatch.org/news/2013/03/11411/wave-ag-gag-bills-threaten-food-safety-and-freedom-press).

The first current-day ag-gag law, Iowa’s law (I. C. A. § 717A.2), was introduced in 2011, approximately three years after the HSUS investigation into the Hallmark-Westland industrialized farming operation and concurrent with the HSUS lawsuit that eventually brought the $497 million settlement mentioned previously. During the span of the Hallmark-Westland litigation, eight other states introduced ag-gag laws (Ag-Gag Bills at the State Level, ASPCA, available at https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level). The Hallmark-Westland incident was the most widely publicized, and likely led to the introduction of these bills, but during that time, other high-profile undercover investigations into industrialized farming operations spurred the introduction of bills as well. In 2009, a Vermont slaughterhouse, Bushway Packing Inc., closed after inhumane treatment of veal calves was caught on undercover recordings (Vermont Slaughterhouse Closed for Treatment of Calves, Huffington Post (March 2010), available at http://www.huffingtonpost.com/2009/11/03/vermont-slaughterhouse-cl_n_343934.html). Also in 2009, a Mercy For Animals undercover investigation at Quality Egg of New England revealed extreme cruelty to egg-laying hens (Undercover Investigations, Mercy For Animals, available at http://www.mercyforanimals.org/investigations). The video footage resulted in animal cruelty charges, approximately $130,000 in fines, and submission to unannounced state inspections at the facility for the following five years. Many other undercover investigations in various states exposed rampant animal abuse and severe legal violations in the meat, egg, and dairy industries that prompted the first wave of modern-day ag-gag laws.

Bill sponsors and proponents of the various types of ag-gag laws claim that these laws are necessary to protect farmers from trespassers or animal rights activists intending to skew video footage and mislead the public. Many assert that instances of abuse are often acts of rogue employees who the farm owners want to see punished just as much as the public does. They argue that it is not right for the entire farming operation to be punished for the acts of individuals. There is also a commonly-stated pro-ag-gag public safety argument – the integrity of the nation’s food supply depends on ensuring the security of the farms where the food is produced. And ag-gag laws prevent people from entering farms for any purpose other than to produce food.

Opponents argue, however, that the true purpose of ag-gag laws is to cover up animal abuse and stop the dissemination of undercover recordings to the public. They assert that ag-gag laws prohibit free speech and unfairly target animal rights activists, and that they allow abuse to go unchecked in favor of economic gain. They also point out that the agriculture industry is uniquely protected by this kind of law – no other industry has this type of legal protection from whistleblowers, yet the agriculture industry is one where whistleblowers are needed due to the effects legal violations could have on public health and safety.

III. Post-2011 Ag-Gag Laws

A. Ag-Gag Bills By State

Since the resurgence of ag-gag, twenty-five states have introduced, and six states have passed current-day ag-gag laws (Ag-Gag Bills at the State Level, ASPCA, available at https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level). The states that have introduced or passed these laws are:

1. Arizona H.B. 2587 (failed in 2014)
2. Arkansas S.B. 13 (failed in 2013)
3. California AB343 (withdrawn in 2013)
4. Colorado S.42 (introduced 2015 and tabeled)
5. Florida S.B. 1246 (failed in 2011)
6. Idaho (I.C. § 18-7015 – 7041)
7. Illinois H.B.5143 (tabled in 2012)
8. Indiana S.391 (referred to committee in 2013)
9. Iowa (I. C. A. § 717A.1 - 717A.4)
10. Kansas (K. S. A. 47-1825 - 1830)
11. Kentucky H.B. 222 (failed 2014)
12. Minnesota S.F.1118 (failed in 2012)
13. Missouri (V.A.M.S. 578.405 - 578.412)
14. Montana (original animal enterprise interference passed in 1991 (MCA 81-30-101 to 81-30- 105); apparently in 2015 legislature proposed "rapid-reporting" amendment that died).
15. Nebraska L.B. 204 ("indefinitely postponed" in 2014)
16. New Hampshire H.B.110  (per legiscan.com, the bill died on the table in 2014)
17. New Mexico S.B. 552 (failed in 2013)
18. New York S.5172 (referred to committee in 2012)
19. North Carolina (N.C.G.S.A. § 99A-1, 2)
20. Pennsylvania H.B. 683  (referred to Judiciary Committee in 2013)
21. Tennessee H.B. 3620 (died in committee in 2012)
22. Utah (U.C.A. 1953 § 76-6-112)
23. Vermont S.162 (referred to committee in 2013)
24. Washington H.B. 1104 (introduced in 2015)
25. Wyoming (W. S. 1977 § 6-3-414)

Of those, Idaho, Iowa, Missouri, North Carolina, Utah, and Wyoming have passed ag-gag bills into law.

B. Categories of Ag-Gag

Current-day ag-gag laws can be split up into one of three general categories – agricultural interference laws, agricultural fraud laws, and rapid-reporting laws.

1. Agricultural Interference Laws

The first type are commonly known as agricultural interference laws. These laws place outright bans on recording sounds or images within an industrialized farming operation, usually when done without the owner’s consent. For example, Iowa’s ag-gag law prohibits “producing an audio or visual record which reproduces an image or sound occurring on or in the location, or possessing or distributing the record” (I.C.A. § 717A.1 - 717A.4). Some of the interference-type ag-gag legislation also criminalizes recording in conjunction with subsequent distribution or dissemination to the public. Minnesota’s 2011 ag-gag bill S.F. 1118 (which did not pass into law) was drafted in this manner. In addition to an outright ban on recording, it criminalized “possess(ing) or distribut(ing) a record which produces an image or sound occurring at the animal facility.” Agricultural interference provisions were present in the majority of ag-gag bills introduced in 2011-2012, but have become less frequent in more recent ag-gag bills, possibly due to the fact that these kind of ag-gag laws have been subject to constitutional scrutiny. (Matthew Shea, Punishing Animal Rights Activists for Animal Abuse: Rapid Reporting and the New Wave of Ag-Gag Laws, 48 Colum. J.L. & Soc. Probs. 337 (2015)). There are currently three ag-gag laws with agricultural interference provisions.

2. Agricultural Fraud Laws

In addition to agricultural interference laws, agricultural fraud laws were prevalent in 2011-2012 ag-gag. Fraud laws criminalize obtaining access to industrialized farming operations by false pretenses or misrepresentation, or applying for employment at an industrialized farming operation under false pretenses or misrepresentation. This can include applying for employment with the intent to record images or sounds without consent of the owner. Utah’s ag-gag law, which was the second in the nation to pass, has an extensive agricultural fraud provision (in addition to an agricultural interference provision). It states, “A person is guilty of agricultural operation interference if the person . . . obtains access to an agricultural operation under false pretenses (or) applies for employment at an agricultural operation with the intent to record an image of, or sound from, the agricultural operation” (U.C.A. 1953 § 76-6-112(2)(b,c)). Most often, agricultural fraud provisions are coupled with agricultural interference provisions in the same piece of legislation, but some states, like Vermont’s 2013 ag-gag bill S.162 (which did not pass into law) was purely an agricultural fraud bill. Three states have passed laws which include agricultural fraud laws.

3. Rapid-Reporting Laws

The third category of ag-gag, which has become more prevalent in 2013-2015, is the rapid-reporting type. This kind of ag-gag legislation requires anyone who records an image or sound at an industrialized farming operation to turn all copies of the recordings over to authorities within a certain amount of time, usually within twenty-four to forty-eight hours. Proponents of rapid-reporting laws argue that these are not ag-gag laws, but that they will actually stop animal abuse quicker than if the laws were not in place. (Legislator Wants to Introduce Controversial ‘Ag-Gag’ Bill, Wisconsin State Journal (February 2015), available at http://host.madison.com/news/local/legislator-wants-to-introduce-controversial-ag-gag-bill/article_6eb375b3-3b2e-5d6f-881c-2d3e8f25e9b0.html). Opponents state that the laws will not protect animals, however, because undercover investigations are more effective if they can establish a pattern of abuse over time. (Matthew Shea, Punishing Animal Rights Activists for Animal Abuse: Rapid Reporting and the New Wave of Ag-Gag Laws, 48 Colum. J.L. & Soc. Probs. 337 (2015)). Their concern is that if the chance to establish a pattern of abuse is taken away, it will be impossible to tell if an instance of abuse is solely the act of rogue individual, or if it is a systematic problem at an industrialized farming operation. While several states have introduced rapid reporting bills, only one, Missouri, has passed a rapid-reporting law. (V.A.M.S. 578.405 - 578.412). This law requires any farming employee who makes a digital recording of animal abuse to submit all copies of the unaltered recording to law enforcement within twenty-four hours. Usually, rapid-reporting laws stand alone and are not tied to agricultural interference or fraud provisions.

4. Miscellaneous Ag-gag Laws

Two states, Wyoming and North Carolina, have passed laws that could be considered ag-gag, but do not fall into any of the above-mentioned categories. Wyoming’s law prohibits trespassing to unlawfully collect “resource data.” (W. S. 1977 § 6-3-414). Though this does not specifically mention recording, animal activists claim it has the same effect as an agricultural interference law. North Carolina’s law is even more unique in that it does not mention the agricultural industry at all. The law, titled the “Property Protection Act,” criminalizes “exceeding access to authority” (N.C.G.S.A. § 99A-2).  One way an employee can exceed access to authority is to record images or sounds in a non-public area of the premises and then using those recordings to breach the duty of loyalty to the employer. Though this doesn’t place an outright ban on recording, an undercover investigator or employee who records animal abuse and then dispenses it to the media could easily be prosecuted. The North Carolina law is the first of its kind.

C. Penalties

Of the twenty-five ag-gag bills that have been introduced, the majority have imposed criminal penalties, but a few have imposed civil sanctions. Of the six that have passed into law, North Carolina’s is the only civil law (N.C.G.S.A. § 99A-2(d)). Penalties vary widely by state, with some states imposing only fines, and some including periods of incarceration. Some also increase the penalty for subsequent offenses. Of the ag-gag laws that have passed, the penalties are as follows:  

• Iowa: imprisonment not to exceed two years and/or a fine of up to $6,250.00 for the first offense, or imprisonment not to exceed five years and/or a fine of up to $7,500.00 for subsequent offenses (I. C. A. § 717A.1 - 717A.4).
• Idaho: imprisonment of up to one year and/or a $5,000.00 fine (I.C. § 18-7015 – 7041).
• Missouri: imprisonment of up to one year (V.A.M.S. 578.405 - 578.412).
• North Carolina: liability for equitable relief, compensatory damages, costs and fees, and $5,000 per day that a defendant has acted in violation of the Act (N.C.G.S.A. § 99A-1, 2).
• Utah: either imprisonment of up to six months and/or a fine of up to $1,000 or imprisonment of up to one year and/or a fine of up to $2,500.00 depending on the severity of the offense (U.C.A. 1953 § 76-6-112).
• Wyoming: imprisonment of up to one year and/or a fine of up to $1,000.00 (W. S. 1977 § 6-3-414).

Some states have also introduced bills that impose extreme financial penalties, such as requiring defendants to pay double or triple the amount of the victim’s financial loss.

IV. Prosecutions Under Ag-Gag Laws

A. Amy Meyer

The first prosecution under an ag-gag law occurred in 2013 when animal rescue worker Amy Meyer was prosecuted under Utah’s law (Amy Meyer’s Ag-Gag Charges Have Been Dropped!, Green is the New Red (April 2013), available at http://www.greenisthenewred.com/blog/amy-meyer-charges-dropped/6998/). Meyer filmed a cow being dragged by a tractor at the Dale Smith Meatpacking Company. She filmed this scene with her cell phone while standing across the road from the facility. Meyer was not arrested, but was charged under Utah’s ag-gag law. After massive public backlash from across the country, the prosecutor’s office dropped the charges against Meyer.

B. Circle Four Farms Prosecutions

A year later, four animal rights activists were also prosecuted under Utah’s ag-gag law (Breaking: 4 People Prosecuted Under #AgGag Law for Photographing Factory Farm From the Road, Green is the New Red (September 2014) available at http://www.greenisthenewred.com/blog/ag-gag-case-utah-circle-four-farms/8073/). The activists had photographed Circle Four Farms from the road. The activists were then stopped by Circle Four Farms employees, and when they refused to hand over their photographs, the police were brought in. The activists were detained for five hours and then given citations for criminal trespass and violation of Utah’s ag-gag law. Eventually all charges were dropped against the activists.

IV. Legal Challenges

A. Utah

In 2013, the Animal Legal Defense Fund (ALDF) and People for the Ethical Treatment of Animals (PETA), among other co-plaintiffs, challenged Utah’s ag-gag law in ALDF v. Herbert, 2013 WL 4017889 (D. Utah July 22, 2013). They brought suit on the grounds that the law violated First Amendment free speech rights because recording and subsequent dissemination of material is a protected form of speech that the ag-gag law criminalized. They also claimed that it violated Fourteenth Amendment equal protection because it unfairly discriminated against and targeted animal investigators and activists. The case survived a 2014 motion to dismiss brought by Utah, where the State claimed the plaintiffs had not suffered actual harm and thus did not have standing. The U.S. District judge agreed with the State in part and removed the plaintiffs who were academics and journalists from the case. The plaintiffs who were investigators and activists (including Amy Meyer), however, were allowed to continue. This lawsuit was the first of its kind in the nation. The case is still pending.

B. Idaho

Idaho’s ag-gag law was also challenged by ALDF, PETA, and co-plaintiffs in 2014 in the United States District Court for the District of Idaho in ALDF v. Otter, 44 F. Supp. 3d 1009 (D. Idaho 2014). The plaintiffs alleged that the statute was unconstitutional on the grounds that it violated the First Amendment Free Speech Clause and Fourteenth Amendment's Equal Protection Clause, and that it was preempted by federal law that protects whistleblowers. The State brought a motion to dismiss on the grounds that the plaintiffs did not have standing and that the Governor was not a proper defendant. The District Court denied an outright dismissal of the claim, stating that the plaintiffs had standing to challenge four of five sections of the ag-gag law, and that their First and Fourteenth Amendment claims survived the motion to dismiss.

In 2015, the Court ruled on the merits of the claim, finding that the law violated the Free Speech and Equal Protection Clauses and was thus unconstitutional, ALDF v. Otter, (Not Reported in F.Supp.3d), 2015 WL 4623943 (D. Idaho Aug. 3, 2015). The District Court held the law was content-based, meaning it was subject to the highest level of scrutiny. In order to be considered constitutional, the law had to be narrowly tailored to a compelling state interest. The Court ruled that the law violated free speech rights because protecting privacy of industrialized agricultural facilities is not a compelling state interest, and the law was not narrowly tailored. The Court held that the law violated equal protection rights because it unfairly targeted animal welfare activists without a legitimate government interest. The Court’s decision stated, “'[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. Mosley, 408 U.S. at 96.’ 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 abuse 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” (Not Reported in F.Supp.3d), 2015 WL 4623943 (D. Idaho Aug. 3, 2015) at 14. So essentially, the Court said that the state was out of place in prohibiting recording at industrialized farming operations and that it was unfairly discriminating against activists’ and investigators’ free speech rights.

V. Conclusion

Ag-gag laws have evolved significantly from the ecoterrorism laws of the early 1990s, and even from the first post-2011 ag-gag laws, when the standard was to introduce agricultural interference or fraud laws. They will continue to evolve as states have failures and successes at passing various types, and as certain types are rendered unconstitutional. It is difficult to determine the direction they will take, but if North Carolina’s law – the most recent, and most unique ag-gag law to be passed – is any indication, ag-gag laws may transition into broader “property protection” type laws that punish all types of whistleblowers, not just agricultural investigators. Regardless of the form they take, both the animal agricultural industry and animal activists will continue to fight, state by state, to pass these laws or render them obsolete.