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.

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  • Fluffy||

    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 think the only real problem with the laws is their selective application to slaughterhouses.

    If a state wanted to make a law criminalizing surreptitious taping on someone else's property, I really don't see how a libertarian can have a problem with that.

    If I gained access to your property "by invitation" during employment and surreptitiously set up a web cam to tape you having sex, nobody would dispute that I had committed a crime. And to me as libertarian you can't draw any distinction between "personal" and "commercial" activities. If I ban taping on my property and you come on my property and tape me, I heartily support a legislature making that a crime, whether you end up taping me fucking, or killing cows, or picking my nose, or typing on Hit ampersand Run in my pajamas.

  • Xenocles||

    Yeah, this. I don't really have a problem with property owners wanting to control the recording of legal activities on their property, but why doesn't conventional trespassing doctrine get the job done?

  • Suki||

    +1000

  • ||

    Criminal/civil trespass and civil contractual claims should cover it.

  • C. S. P. Schofield||

    Not unless there is a quick legal response that would prevent the dissemination of the video. I suspect that, under present law, it is illegal as hell to videotape or photograph people on their own property without their express permission. But somehow such photos or videos always seem to get out anyway and I seldom hear of anybody really getting slammed for them. And there are always idiots ready to defend camera peepers with supposedly lofty ideals.

    Mike Wallace, Dan Rather and the 60 minutes crew never really got the epic beating they deserved for their 'hidden camera' segments. Its a pity. such antics legitimized this kind of crap.

  • Voxpo||

    Do the crime, do the time. But let's not give the death penalty for a parking offense. If hidden videos are so devastating to the property-owners, that might ought to tell us that their activities need a few more eyes on them. It's not as if somebody is filming an ingenious new technology trade secret. The patent on beatings and blood has more or less expired.

  • BMFPitt||

    I would contend that private individuals (though not state actors without a warrant, obviously) should have immunity from such laws when taping activity that is itself illegal.

    Just for good measure, I'd throw in an explicit right to tape police or government officials acting in an official capacity in public.

  • Fist of Etiquette||

    When they hire these workers, is there no employment contract? No recording on premises clause? Without putting too much thought into it (which is how I roll), it seems like a civil matter to me.

  • mad libertarian guy||

    How, then, do we address the idea that in order for the marketplace to be free, one must have all of the pertinent information concerning a particular product? How am I to choose where to allocate my resources if I'm not able to get all of the information I need in order to make an informed decision about whatever it is I am buying?

    I agree that property owners ought to be able to set their own rules, but what is a free market solution balancing that idea with me having the proper information in order to make an informed buying decision?

    And simply taking their word for it isn't really an adequate option.

    I don't mean to suggest that I'm one of the anti-meat zealots (far from it), but if given the opportunity I'd rather buy my meat from a farm/slaughterhouse that doesn't expose their stock to unnecessary amounts of cruelty. How am I supposed to be a responsible actor in the free market if there are no controls to verify claims made by a farm/slaughterhouse, and it's been rendered illegal for me to gather said information?

  • Brett L||

    How about just not buying products from places that aren't transparent in their production. All you have to do is refuse to buy what you don't know from people you don't trust.

  • Xenocles||

    It works for me.

  • mad libertarian guy||

    Except that relying on their transparency is just a fancy way of saying that I must believe what they tell me about their practices. And how am I to verify that their transparency is actually as transparent as advertised if there is no way to verify?

    How about private certifying agencies which are voluntary, yet have the ability to take stock of an operation's stock at virtually any point so long as they aren't actively disrupting the supply line?

  • Xenocles||

    They exist and are doing good work now. For example, I believe nearly every bit of meat sold at Whole Foods is evaluated under one.

  • Cdr Lytton||

    http://www.animalwelfareapprov.....ification/

    "Animal Welfare Approved (AWA) was founded in 2006 as a market-based solution to growing consumer interest in how farm animals are raised and desire to know where their food is coming from and how it is produced."

  • SIV||

    Most slaughterhouses, by the nature of their business, are anything but transparent. If they don't chose to disclose their practices you are free not to buy their product.

  • califernian||

    you have heard of Consumer Reports right?

  • SIV||

    How am I supposed to be a responsible actor in the free market if there are no controls to verify claims made by a farm/slaughterhouse, and it's been rendered illegal for me to gather said information?

    Only buy meat originating from slaughterhouses that provide their own documentation or allow outsiders/third parties to document their practices. If none do this, slaughter your own or go veg. I can't conceive of a "right" to "cruelty free" meat.

  • Xenocles||

    "... but if given the opportunity I'd rather buy my meat from a farm/slaughterhouse that doesn't expose their stock to unnecessary amounts of cruelty."

    I actually agree with you, and it's not as challenging as you think to verify. I've come to the conclusion that pretty much any mass-market meat product does not meet my standards, so we only buy from providers who disclose their methods in a verifiable way or who have third-party audits.

  • Fluffy||

    You can never have access to all possible information to satisfy every possible concern.

    If I decided that I didn't want to buy meat from anyone who had ever had an adulterous thought, I'd have to take sellers' word for it.

    If somebody invented a way to scan peoples' minds, and went on to private property to use it and find out if particular sellers had adulterous thoughts, that would "increase the information in the marketplace" and allow me to address my individual moral concern about my counterparties in meat transactions. But a private property owner who wanted to ban mind-scanners from his property would still be in the right.

  • ||

    Once, in order to prove to a girlfriend/liberal idiot that chickens were not unnecessarily tortured at the chicken farm, I put her stunning vegetarian ass in my car and drove until I ran across a chicken farm.

    I just walked up the house and knocked on the door. I told the farmer what I wanted; to tour the chicken houses. And why; to prove to Airhead ( a gymnast with the most fantastic legs) that the chickens were fine and that farmers were not sadists with blood dripping from their fangs.

    His answer? " Sure buddy, c'mon!"

    Sadly, a week later I overheard her repeating the same old ridiculous lies about chicken torture to her friends.
    *SIGH*
    Eventually, her impressive talents were not enough to overcome her faults. I was young, I was weak, what can I say?

  • Xenocles||

    There absolutely are farms where treatment amounting to torture takes place, just like there are farms where chickens have their own acreage to roam and are largely unmolested until the slaughter. It all depends on which one you go to. It also depends on what you consider torture - I think conditions like battery cages are unreasonably cruel, but your mileage may vary.

    Nor does it mean that the farmers are necessarily sadists - they might just see the animals as objects to get to market. Then again, some of the whistleblowers targeted by these laws have uncovered gratuitous maltreatment of animals, from kicking and beating to cattle prod sodomy.

    Without more information I can't tell if your ex was satisfied with the conditions at your sample farm but still upset about the conditions in the general industry. That doesn't seem unreasonable to me.

  • ||

    I grew up in a farming community. I was confident that any farmer I came across would be humane because I know the character of farmers. They are completely different critters from the bottom of the barrel labor working corporate operations. Those people, for the most part, did not grow up around farms or animals and have little or nothing vested in the operation of one. The horrors you mention probably happened on such places. I am generalizing and sure there are exceptions, but around here rural people feel they belong to the land and animals as much as the land and animals belong to them.

    More info: she was satisfied for that day while reality was in her face. Later she slid back into self indulgent outrage and recreated the fantasies necessary to gin it up. (She grew up in LaPlace as a very sheltered city girl. She didnt know a wild animal from a cartoon. To her, Bambi was a documentary.)

  • Xenocles||

    That's what I've seen in our local farmers, which is why we preferentially buy from them.

  • SIV||

    chickens have their own acreage to roam

    lol

    Cite?


    Commercially produced "free-range" chickens aren't roaming about hunting their own food. They might have something of a view and experience each 24 hour period as 1, not 2-3 days but they sure as hell aren't freely gamboling field and forest.

  • Xenocles||

    I'll cite the local farms I deal with, which pasture both their meat and egg birds. I don't have a way to share this information with you via a third party, but I have witnessed it personally.

  • ||

    Jeanne?

  • Voxpo||

    You might find this video, "Vital Farms - Austin, TX," worthwhile. http://www.youtube.com/watch?v=3_37IYIJG7A

  • ||

    that is what I told Jeanne....unhappy hens dont lay eggs. If you torture them, you will go broke.

  • Voxpo||

    I wouldn't go so far as to say: there are eggs in the stores, therefore there is no mistreatment of hens, etc. Things aren't that neat. For example: a hen isn't producing well, is sick, or etc.--hey, Dipshit #1 can do whatever he wants to that one, virtually no effect on bottom line.

  • ThatSkepticGuy||

    "How am I supposed to be a responsible actor in the free market if there are no controls to verify claims made by a farm/slaughterhouse, and it's been rendered illegal for me to gather said information?"

    Except we HAVE such controls in place. Animal Rights deliberately act like we don't because they're utter nutcases who won't be satisfied with the level of of quality and control at these places until it means they're shut down completely and nobody eats meat or animal products.

    Keep in mind,too, that when you see an ARA video of slaughterhouse or farm conditions that are abusive, much of the time you're seeing either footage from Mexican slaughterhouses from the 80's or you're seeing people the ARAs paid to be abusive on film, like the Conklin Dairy hoax.
    |
    Never underestimate the depths of insanity and hypocrisy to which the Animal "Rights" movement sinks.

  • Voxpo||

    I'd never heard the term "ARA" before, but ThatSkepticGuy has obviously put a lot of thought into this. That's clear from the way he overgeneralizes and calls people who disagree with him "nutcases."

    I, apparently a member of an acronym I had no idea existed, would be delighted to think that people stopped being cruel to farm animals in 1990. I'd be slightly confused if most such abuse was, in the first place, paid for by ARAN's (animal rights activist nutcases) such as myself. Seems counterproductive. Sadly, I find both of these hypotheses quite fanciful.

    But, go on trying to convince everybody that wanting people to not cause animals to suffer is insane. Or that there's essentially no cruelty in contemporary agriculture. (One wonders why pass these ag gag laws then?) I think your odds of success are diminishing in parallel with the size of mass market video cameras.

    - a LARAN (libertarian animal rights activist nutcase)

  • Fluffy||

    I'd be slightly confused if most such abuse was, in the first place, paid for by ARAN's (animal rights activist nutcases) such as myself. Seems counterproductive.

    Are you kidding?

    Considering the fact that we're dealing with people who think that it's cruel to eat animals or use animal products in the first place, it's pretty obvious to me that at least some of those people would conclude that it's ethically perfectly permissible to create outrageous incidents to inflame public sentiment.

    If you're standing amidst animals that are already being treated inhumanely by your lights, the end of (eventually, someday) freeing all the little woodland creatures would certainly justify the means of making that "cruelty" more overt and telegenic, for the benefit of the camera you've got handy and for the good of the "cause".

  • Voxpo||

    Nope, all kidding aside. I've seen enough animal cruelty to conclude that you don't need to invent it. I guess we each draw our own conclusions about the many videos showing appalling conditions and treatment. But, I can't help but think there's some wishful thinking involved in concluding that "much of the time" these are somehow not real. Then there are those who just don't give a crap.

    Here's just one case, btw, updated just two days ago: http://www.newjerseynewsroom.c.....se-scandal
    "...Brian Douglas, a former employee at a North Carolina Butterball plant, was sented to 30 days in jail for felonious cruelty to animals and ordered to pay $550 in fines after investigators caught the abuse on video."

  • Voxpo||

    ...we're dealing with people who think that it's cruel to eat animals...

    One other thing about this comment--and a more general refrain when debating this topic. Obviously, some people think it's inherently cruel or wrong to eat animals, etc. But, is everyone else on Earth okay with beating livestock for no reason? Are all libertarians the same? Of course not. There are plenty of non-vegetarians who are disturbed by apparent cases of (completely unnecessary) cruelty to cows, chickens, etc. and by at least some aspects of agriculture as it is commonly practiced--specifically, those aspects that may be causing lives of suffering (not talking about the axe and tree stump moment here).

    In other words, you don't have to be a vegetarian to want to reduce suffering in animals raised for food. And you don't have to oppose swatting a fly (one of several favorite examples among the critters-don't-matter geniuses) to believe that some animals other than humans are capable of significant anguish. These are cloddish and convenient conceits and those who do have empathy for animals should disown them.

  • mad libertarian guy||

    The mad one has a sad . . .

    I ordered a sealed copy (from a 3rd party) of a LP box set that is out of print, and is a collector's item. The item was, as described, sealed, never having been opened, none of the LPs ever played, but one of the 7 records in the set is completely fucked; scratched for the first 1" or so rendering that section of the record unlistenable (and during a very "pretty", quiet section to boot, and the set virtually worthless in the event I wanted to resell it in the future. And because I bought it off of a 3rd party (who sent me exactly what I bought - a sealed copy of the set), there is no real recourse, which means I've been hosed on this deal. I don't have a set that I can listen to, nor do I have a set that I can sell. On top of that, since I got what I ordered, I can't return it either.

    Fortunately, this is but the second time I've ever received a new, sealed album, of the hundreds I've bought/ordered, in bad shape.

  • califernian||

    This wouldn't have happened if there was government involved.

  • Death Rock and Skull||

    Buy a replacement from a broken up set.

    Only purchase unsealed things from now on if you plan to unseal them anyway.

  • mad libertarian guy||

    I had an opportunity to buy a broken set recently, but didn't realize that it was a broken set as I had never seen the covers before (they are alternate covers), and the seller never said that it was a broken set (just that they were "rare" editions - rare indeed being that discogs had no record of them, and that made me skeptical. Bummer.

    I've generally had good luck with buying sealed records. Most people who grade records aren't nearly as conservative with their grades as they ought to be. Unfortunately, I've been burned far too often that way. I'd much rather risk the chance of there being some sort of fluke with a sealed copy than trust the grade given. That isn't to say that I don't buy used records, because I do (many of them), but if given the choice between a sealed copy and one that has been opened (assuming the price is close), I'll go sealed every time (of course, if I'm buying from a collector rather than a store, that leaves me with no recourse should there be a problem with the record).

  • ThatSkepticGuy||

    "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."

    What the author completely fails to address is the fact that many of these videos are often faked by the Animal Rights whackos themselves.

    I don't see much "whitleblowing" or free speech in a bunch of sociopathic terrorists and extremists paying pople to abuse animals for fraudulent purposes, as happened at the Conklin Dairy Farm and many other places. For fuck's sake, it feels like the author is one sentence away from joining the ranks of the nutballs who insist these people's acts of wanton violence against people and property are protected under free speech.

  • Voxpo||

    For the sake of clarity, can you please explain the difference between "nutcases" and "nutballs?" I find that defining the terms up front makes any discussion much more productive.

  • mad libertarian guy||

    Talk a out a guy with a hard on for sticking it to the animal lovers of the world.

    ThatSkepticGuy doesn't seem all that skeptical when it comes to the veracity of his claims that all reports of animal abuse at slaughterhouses, whether documented on video or not, must be false flags.

  • C. S. P. Schofield||

    While I'm uncomfortable with laws that specifically protect agricultural operations, I am also sick to the teeth of Animal Rights nitwits. Their organizations have so often been caught doing appallingly callous things to animals in their care, or appallingly stupid things to animals they 'rescue', that the movement will have to credibility with me until they start to police their own.

    We really put up with far too much bushwa in the name of protest. Protesters who throw 'symbolic' crap at people should be arrested for assault. Protesters who set 'symbolic' fires should be fined for failing to get a fire permit for anything approaching the size of a biggish flag, and arrested for arson for anything really big. And people who sneak cameras onto the property of others should at a minimum be treated with a great deal more suspicion than has been the norm.

  • Kent||

    Just another goose step down the fascist road.

  • Ardelle||

    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.

  • Francisco||

    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.

  • AllesRight||

    I don't have a problem with laws that further enforce private property rights. If enough people gave a damn about what conditions their steak or wings were produced under the abuse would with rare exception go away.

    If the animals rights crowd want us to become vegan they need to do more than produce sickening pics and videos some of which we now know are faked. If they enter a property illegally they should be prosecuted. If they enter under false pretenses and record what they see without permission or knowledge of the property owner I have no problems with their being prosecuted. We will also know if the recording was from the location they claim it was.

  • Voxpo||

    It is a little difficult to give a damn about the conditions if you don't know how bad the conditions can (and do) get.

    Anyway, sounds like a type of case ripe for jury nullification.

    Gut check: what if the video in question was of a dog-fighting operation, on private property, filmed under false pretenses, etc.? Or a puppy mill full of neglected dogs?

  • AAnderson||

    Great article. It seems all too often that Reason articles gravitate towards supporting institutionalized wealth inequality (otherwise known as oppression, other-otherwise known as anti-libertarian), capitalism rather than free markets, anthropogenic climate change denial, etc. This was a genuine piece. More like it, please.

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  • pinostabaum||

    why isnt the act of recording just thought of as an extention of innate human ability? whatever i see and hear is recorded in my brain anyway. imperfectly, but well enough to act as witness in a court of law. if the recording merely picks up whatever i would pick up anyway, and i was allowed to be on site anyway, why should there be any additional protection for the one being recorded? i could recite and sketch my experiences; the recording just prevents me from embellishment.

  • Voxpo||

    The owner could ask you if you have any recording devices and condition your entry on the answer being "no." They could also require that you sign a non-disclosure agreement before letting you in. I doubt these would do well in court if you reported illegal behavior, however. Legal mistreatment, however, is another matter. I ain't no lawyer though.

  • Jake W||

    Not that some brands couldn't advertise and practice responsible treatment of the animals slaughtered for their products. Sigh.

  • Voxpo||

  • lrtventuresllc||

    I agree with you the slaughter houses need to practice much better treatment of the animals

  • Muirgen||

    Coming on to my property and filming without permission would result in criminal charges. If an employee, there would be an employment contract with financial penalties if any filming occurred. Filming or pictures in a public space with no expectation of privacy would be legal in every state. That would stop law enforcement from prosecuting those who record police actions. Police of any stripe should ALWAYS be cognizant of being recorded and that they have no fallback position of jailing the videographer. Having said that, if I wanted to run a slaughter house, I would do so in the most humane way possible and welcome inspections. Being a meat eater required that something dies in order to become food, there is nothing disgraceful about this.

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