Laws meant to crack down on farm whistleblowers, commonly referred to as “ag gag” laws, have been drawing fire around the country from various quarters—from animal rights activists to free speech advocates. Detractors often refer to “ag gag” laws as such because these laws serve to gag or stifle the speech of persons who cry foul over some facets of animal agriculture.
I’ve been very vocal in opposing ag gag laws, blasting them as unconstitutional and wrongheaded in a September column and speaking out against them during a recent lecture in Iowa, one of a handful of states with an ag gag law on its books.
While momentum appeared to favor ag gag laws this past autumn, two recent decisions have dealt a serious blow to that support.
Last month, a prosecutor in Utah brought the state’s first prosecution under its ag gag law, passed in 2012. Just as quickly as he had filed the case, though, prosecutor Ben Rasmussen dismissed it.
Then, earlier this week, Tennessee Gov. Bill Haslam, a conservative Republican, decided to veto the state’s proposed ag gag bill. Gov. Haslam, on the recommendation of his attorney general, rejected the bill as a violation of the constitutional rights of state residents.
In states with ag gag laws on the books, as in Tennessee, many in-state and national farm interests supported adopting the measures. They claimed it would have done everything from helping keep farm animals safe to alleviating on-farm meddling by animal rights groups. Meanwhile, a coalition of animal rights activists and free speech advocates in these states and across the country opposed the measure. They argued that the bill is an unconstitutional imposition on free speech rights, and that it is meant first and foremost to shield animal abusers.
In my time studying ag gag bills and laws, I have never seen one that passes constitutional muster, isn't filled with vagaries and loopholes, and doesn’t risk creating serious unintended consequences.
Utah’s loopholes are gaping. For example, as I wrote last year, if “the recording itself was carried out off farm property, a good argument could be made the law would not apply.”
That was exactly the reason that Prosecutor Rasmussen cited for dismissing its case.
“I determined that in interest of justice I wouldn’t pursue the matter,” he told the Salt Lake City Tribune.
Meanwhile, Tennessee’s law would have imposed unintended and severe burdens on the state's farmers and law enforcement officers. It would have given a person who photographs or videotapes farm animal abuse twenty-four hours to report the incident to police. It would also require that person to turn over to law enforcement all photos and videos of the abuse by the same deadline.
The intended consequences of the Tennessee law would indeed have violated residents' First Amendment rights. It would have done so by unconstitutionally restricting and compelling speech—forcing anyone who photographs or films animal abuse to turn over all unedited media to the police within twenty-four hours on the one hand and barring those who film or photograph farm animal abuse from demonstrating whether any one incident is part of a larger pattern.
The unintended consequences of the law could have ensnared agricultural producers in the state who unwittingly recorded farm animal abuse—such as with their own farm security cameras.
Currently, Tennessee’s animal cruelty law punishes anyone “who intentionally or knowingly” abuses a farm animal. But the ag gag bill has no requirement that photos or film have been “intentionally or knowingly” captured. Consequently, a farmer whose own security camera filmed a trespasser abusing the farmer’s own animal on the farmer’s own farm could have faced misdemeanor criminal charges under the ag gag law if they didn’t report the abuse—even if they haven’t watched the video and had no idea the abuse took place.