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"Ag Gag" Statutes Under Scrutiny

01/25/2019

Eight states have passed "Ag Gag" laws. Although specific provisions may differ, the basic intent is to prohibit unauthorized persons entering an agricultural operation to obtain clandestine video recordings. In addition, many of these statutes prohibit false statements on employment applications to gain entry to facilities. The states that have enacted "Ag Gag" laws are Iowa, Idaho, Kansas, Missouri, Montana, North Carolina, North Dakota and Utah.

Shortly after enactment of the first laws, plaintiff lawsuits were filed in Federal courts questioning the constitutionality of restrictions on entry to livestock operations to obtain clandestine videos. The Animal Legal Defense Fund and the People for the Ethical Treatment of Animals have been leaders in opposing "Ag Gag" laws. In this endeavor, they are joined by legal academics and media.

To date, three of the "Ag Gag" statutes have been struck down principally on First Amendment considerations but also Fourteenth Amendment due process claims. The Iowa law passed in 2012 was subject to plaintiff lawsuits in late 2017. A Federal court in Iowa held the statute unconstitutional maintaining the substance of what the law intended to prevent did apply to speech. Even if falsehoods are involved, the First Amendment is applicable, if the falsehoods that may include creative editing of images, do not actually cause "legally cognizable harm" or provide "material gain" to the agent exercising First Amendment rights. The Court may have place a fairly narrow interpretation on "material gain" with respect to the plaintiffs. Organizations such as PETA are driven less by concern over animal welfare than they are in raising funds. By publicizing clandestine videos, the allegedly welfare-oriented organizations actually intensify their funding from donors by reinforcing their welfare (rather than pro-vegan) credentials and by posting videos and publicity from news conferences.

With respect to the Iowa statute, the Federal court maintained that the state failed to prove a compelling interest, which in the case of an intrusion on a specific farm in Iowa, would certainly not be the case. The courts rejected claims relating to biosecurity as the justification for legislation restricting access to agricultural facilities. The Court considered that laws relating to trespass and other statutory protections would be more applicable to restricting access that broadly framed "Ag Gag" laws.

With respect to the Idaho law, a Federal district judge determined that the statute violated both the First and Fourteenth Amendments. On appeal, the Ninth Circuit ruled that false statements to obtain production records or to inflict harm on an owner or to obtain material gain were valid provisions.

In evaluating the Utah "Ag Gag" statute, a Federal district judge considered the statute unconstitutional. The state maintained that the law was to protect animals and workers from disease and injury, an overtly simplistic contention that did not stand scrutiny.

The Kansas and North Carolina laws are undergoing challenge again on First and Fourteenth Amendment considerations. The North Carolina Property Protection Act applies broadly to agricultural and industrial enterprises which holds violators liable to the owner if unauthorized access is obtained for the purposes of obtaining records or undertaking clandestine photography.

The challenge to the North Carolina law was dismissed by courts in 2016 on the basis that the plaintiffs lacked standing. The United States Court of Appeal for the Fourth Circuit reversed the finding of the lower court and the case was remanded back for trial.

Given that three out of eight "Ag Gag" laws enacted by states have been ruled unconstitutional and two others are under litigation, egg producers cannot rely on "Ag Gag" laws for protection given validation of First Amendment rights accorded to journalists or agents of animal rights organizations.

Apart from carefully scrutinizing applicants for positions and ensuring barriers against unlawful access, farms should be operated in accordance with acceptable standards of welfare. Conformity with housing and procedures specified by certification organizations such as the AHA are required. Applying appropriate biosecurity, there is no reason why journalists and representatives of consumer groups cannot be admitted to farms in a proactive measure to avert negative publicity invariably following an intrusion.