How Ag Gag Laws Suppress Free Speech and the Marketplace of Ideas

Why states are banning farm photography.

Late last month the group Compassion Over Killing, a pro-vegetarian animal rights group, posted video it obtained from an activist working undercover at a California slaughterhouse. Among other things, the ghastly video shows workers using a bolt gun to half-stun cattle before the cows were sent, alive and obviously suffering, down an assembly line to be tethered in the air by one leg on the way to being slaughtered.

The slaughterhouse, Central Valley Meat, located in Hanford, California, supplied meat for the USDA's National School Lunch Program and to chains like In-N-Out Burger, Costco, and McDonald's. After the video surfaced, those private buyers all ceased buying from Central Valley. The government shut down the plant, only to permit it to re-open days later.

Reports this week noted that had the group's undercover operation taken place in several states, including Utah, the person who recorded the video could have been subject to prosecution. Why?

Earlier this year a new law in Utah outlawed "agricultural operation interference." The law, one of several nationwide, makes it a crime to record farm animals and farm animal workers without permission of the farm owner.

The Utah law is the latest version of the "ag gag" bills that have been passed or considered around the country.

Iowa's law, also passed last year, establishes the crime of "agricultural production facility fraud." Kansas, meanwhile, prohibits "enter[ing] an animal facility to take pictures" without consent of the farm owner. North Dakota and Montana have similar laws on the books.

These ag gag laws are all intended to shield farm-animal abusers from the prying eyes of animal rights groups and are meant to prevent whistleblower videos like COK's from seeing the light of day.

The laws pit many large and medium-sized agricultural operations that support the law against animal-rights groups and some food-safety advocates.

On a practical level, the laws appear to have holes. For example, the Utah law bans video or audio recording but not live broadcasting. Hence, an undercover employee could conceivably transmit live streaming video that could be recorded at another location. So long as the recording itself was carried out off farm property, a good argument could be made the law would not apply.

On a constutional level, the ag gag laws put at loggerheads some important individual freedoms: The First Amendment freedoms of press and speech on the one hand, and the protection of private property rights on the other.

As I wrote last year:

Ongoing state efforts to ban photography of farm animals—usually drafted under the guise of protecting agricultural producers—are overbroad and unconstitutional. If an individual or group is trespassing on or otherwise sabotaging a farm operation, then that individual or group can and should face civil suit and/or criminal charges. Photography, though, is a separate issue. One need not support the means or goals of animal rights groups to recognize that members of these groups should enjoy the same First Amendment freedoms as everyone else.

Legally, it's a difficult argument to make that a person has a right to go onto another person's private property uninvited and record video while on the property. I have no more right to photograph myself swimming in your pool than I do to videotape inside your barn without your permission. While employment generally provides such an invitation, these ag gag laws would seem to largely foreclose on taping once on site.

That said, the videos are valuable—not just as a fundraising and advocacy weapon for the groups that tape them but also to the public and to the market more generally.

The whistleblowing capacity of the videos adds to the marketplace of ideas. Video like that obtained by COK are an important driver of public opinion on animal welfare issues and—as in the case of In-N-Out Burger and others—serve as a signal to the food industry to demand scrupulous slaughterers and to better monitor the work of their suppliers.

On the other hand, many supporters of ag gag laws argue they are necessary to counter the rhetoric of anti-meat zealots.

"I would argue that it's not for the animals," says Randy Parker of the Utah Farm Bureau, discussing why activists film such videos, "but it is politically motivated for their anti-meat agenda."

Yes, of course it is. But one needn't share one shred of support for an anti-meat agenda to ask if "politically motivated" speech is not to be protected under the First Amendment, then what speech will be protected?

Animals are not people. They don't have rights. As a result, people are responsible for the degree of welfare they will provide animals kept as pets, those used for economic gain (as with a race horse), or those raised for food.

When animals are to be turned into food, investigative pieces by journalists, animal-rights groups, and others can help people make better choices. And by "better" I mean more informed choices—should we both choose to care enough to be informed and to act on that information—rather than "forced to make decisions some animal rights groups think we should make."

Non-vegans have to decide for themselves how much (if at all) they care about how the animals they are going to eat are treated on the farm and at the slaughterhouse.

Videos like those shot by COK provide valuable information to consumers who want it. Ag gag laws, which stifle this flow of information, protect a particular category of business while offering no public benefit, and impose a prior restraint on speech, are wrong at their very core.