Farming

Ag Gag Laws Sputtering

So-called "ag gag" laws unconstitutionally target farm whistleblowers. Two recent decisions have dealt a serious blow to these laws.

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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.

How?

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.

I strongly support the right of farmers everywhere to raise livestock for food. I also believe that the overwhelming majority of food producers in this country take proper care of the animals they raise for food.

But, as I wrote back in September, those who argue that farm photography and filming shouldn't be protected under the Constitution because it's a "politically motivated" means of popularizing an "anti-meat agenda" appear to be unfamiliar with the Constitution.

To reiterate, a person needn't share one shred of support for an anti-meat agenda to wonder if "politically motivated" speech is not to be protected under the First Amendment, then what speech is protected?

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33 responses to “Ag Gag Laws Sputtering

  1. I suppose I might support some flavor of a law like that which was targeted solely at the trespassing element of capturing video or photographic evidence.

    The consequence of my law? Increased surveillance drone sales. Everybody wins. Farmers keep hippies off their property, farm animals don’t get abused (whatever that means), unmanned aircraft manufactures make a buck, and we get to debate whether airspace is private property.

    1. I hope you support hate crime laws too, and any other law that protects a certain class from something that’s already a crime no matter who the victim…

      Trespass is trespass. Why do Ag interests need to be specially protected?

      1. Because for some reason be bopping onto someone’s property with a hidden camera is not considered a trespass everywhere.

        1. Might I ask where the act of unauthorized presence on someone’s property is not considered trespass?

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      2. Agriculture definitely doesn’t deserve special protection. I’m talking about the difference between trespass and trespass to record. The latter, the intruder is coming away with something, just like when a burglary is more than just trespass.

        1. Why should it be any more of a crime? It’s not like the recorder is depriving the land owner of any of his property. If anything, state invasion of privacy laws can take care of it in civil court.

          Trespass suffices on the criminal side, IMO.

    2. farm animals don’t get abused (whatever that means),

      It means not fucking them.

      1. Wait, that translates to abuse or not abuse? Is “withholding” the abuse you’re talking about? YOU’RE SCARING ME.

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  2. As usual, legislatures end up writing bad and unconstitutional law because they’re too dumb to parse out the facet of the behavior they possess a legitimate power to punish.

    Leave the camera part alone. Just modify the fraud law to prohibit accepting paid employment with the intent of surreptitiously taping events on private property. “Intent” to be prima facie established by showing up for a shift with a hidden camera.

  3. It is up to the animal’s owner unless, of course, he is the abuser. “…the law is an ass,” as always.

  4. OK wow, so who comes up with all that crazy smack I wonder?

    http://www.Prox-Anon.tk

    1. Well, pedobot, according to the UN Office of Drugs and Crime, the majority of the smack on the market comes from Afghanistan. Afghanistan produced about 66% of world opium supply in 2009. Here is an article in the Daily Mail from 2012, indicating that production of opium increased dramatically in the years since 2009.

      Someday, pedobot, we will look back on this dark age of prohibition and shake our heads.

      1. Unpossible. Our troops “control” Afghanistan.

        1. Maybe it means Obama is not as anti-drug as we thought.

  5. What is interesting in the debate here in Tennessee, the folk who generally roll statist were against this law because they viewed reporters as better at investigating than detectives. Free Speech was rarely brought up. It was all about making sure the “investigative reporter” was not impeded. Neither was brought up the aspect that what they were also advocating is making sure their favorite news outlets made a buck before the government could spend a buck prosecuting anybody.

    I was against it on the basis that nobody should be forced to testify against another.

  6. When animals acquire rights…

    1. When slaves acquire rights…

      When women acquire rights…

      When children acquire rights…

      nah maybe you’re right, making others endure hardship for our gain is a pretty sweet deal.

  7. I welcome free speech – especially when that free speech serves to protect us and the animals in our care.

  8. ” I also believe that the overwhelming majority of food producers in this country take proper care of the animals they raise for food.” BL

    Why do they go to such great lengths to keep everything out of sight? They don’t push these bills because all the animals are wearing silk robes and getting manicured.

    I grew up on a fish farm and near several dairy farms, I know that life for these animals is not a constant hell like some of the more radical animal rights people say(at least for those two types), but there is certainly some disturbing aspects to it and that is just production, I’m sure the slaughter is far from ideal as well.

    “Just modify the fraud law to prohibit accepting paid employment with the intent of surreptitiously taping events on private property.”-fluff

    I wouldn’t even support that, if your industry is only viable by misleading, distorting, and outright lying to your customers then you should probably just go stand in front of the bolt gun and hope it works the first time.

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  10. Well-written, well-argued. Bravo.

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