In the summer of 2019, an animal advocacy group conducted an undercover investigation of Fair Oaks Farms in Indiana. Secretly recorded video revealed employees beating calves with metal rebar, abusing cattle with hot branding irons, and denying cows veterinary care. After the video went public, the employees were fired and charged with animal cruelty. But in some states, it could be the advocates that filmed who face criminal charges.
Referred to as ag-gag laws, eleven states have passed laws that criminalize undercover investigations of agriculture operations. Some of these laws flatly prohibit filming agriculture operations without permission, while others criminalize lying to get inside. Most investigations by animal welfare groups are employment based, meaning advocates deceptively obtain jobs with the intent to film once inside. Thus, when a state criminalizes deception to obtain employment, undercover investigations are effectively outlawed.
Critics of ag-gag laws argue that they are meant restrict whistleblowing and target animal rights investigators. On the floor of the Iowa House, Rep. Bennet said of the state’s amended ag-gag law: “This bill gives the middle finger to free speech, consumer protection, food safety, and animal welfare.” While defenders of the laws claim their goal is to protect biosecurity, private property rights, and our food supply, some bill sponsors have bluntly stated their goal is to target activists that cast the agriculture industry in a negative light. Given the concerns that ag-gag is meant to target undercover investigations, it’s no surprise that organizations of journalists, the ACLU, as well as animal rights groups are all involved in free speech challenges to these laws.
Federal courts in Idaho, Iowa, Utah, and Wyoming have ruled ag-gag laws unconstitutional. In 2018, the Ninth Circuit held a portion of Idaho’s law, which criminalized lying to obtain access to an agricultural facility, violated the First Amendment. The court reasoned the law was overly broad, as it criminalized even harmless speech. A wave of free speech challenges followed the Ninth Circuit’s decision, and as of November 2019, cases are being considered in three more states.
Ag-gag laws raise two First Amendment issues. First, several circuits have concluded that recording is a form of protected speech. While filming is not literally “speech,” it is an essential part of the pre-speech process and may be treated similarly to restrictions on speech itself. Second, lying to get a job is clearly speech, and even lies are protected by the First Amendment. Misrepresentations and deceptions are an inevitable, if distasteful, result of open and free public debate. Though criminalized lies like fraud and defamation are inherently harmful, lies made to obtain a job are distinguishable because they’re often harmless. For example, padding a resume or lying about career goals is generally harmless and doesn’t amount to employment fraud. To be criminalized, speech needs to cause some specific harm.
The most recent ag-gag decision came in January 2019, when a district court in Iowa struck down the state’s law. The Iowa statute criminalized both obtaining access or employment an agricultural facility through misrepresentation. But less than two months after the court’s decision, a redrafted version of the law was signed into law. Again, the law criminalized both obtaining access or employment at an agricultural facility. However, the drafters added an intent element to the law, requiring “intent to cause physical or economic harm or other injury . . . .” Apparently, reading prior ag-gag decisions closely, the Iowa legislature has narrowed the applicability of the law. Unlike before, where a deceptive speaker with harmless intentions could be punished, the speaker now must plan on harming the facility to be subject to the law. This may be the sort of specific harm that courts look for in First Amendment challenges.
The Animal Legal Defense Fund is currently challenging the amended Iowa law. If the statute is upheld, it may serve as a drafting guide for other states. We may see the resurrection of laws in Idaho, Utah, and Wyoming, or even an expansion into more hesitant states if legislators no longer fear First Amendment objections. However, if the Iowa law is defeated again, we can expect ag-gag to continue rolling back nationwide.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.