The Unconstitutionality of “Ag-Gag” Laws
As environmental issues continue to plague the planet, factory farming has been a main contributor to the damage. In the United States, factory farming and Concentrated Animal Feeding Operations (CAFOs) have been operating with little to no transparency with the public. Animal rights activists and environmentalists have been fighting for American citizens to see the reality of the meat production industry. However, laws referred to as ag-gag laws block these individuals from exposing the agriculture industry. The majority of ag-gag laws have specific clauses in them that prevent non-employees from reporting on the functionality of factory farms in the state. Although some state ag-gag laws have been found to be unconstitutional, others still remain in place and unchallenged. Ag-gag laws violate the Constitution on the basis of the Free Speech Clause and Free Press Clause of the First Amendment; therefore, those still in place should be outlawed in their respective states.
These ag-gag laws violate the Free Speech Clause of the First Amendment due to their policies that criminalize speaking against or about their farming operations. The silencing of outsiders is where the name ag-gag comes from, with “ag” referring to agriculture and “gag” referring to the prevention of any negative discussion about the industry. In some states such as North Carolina, Iowa, and Arkansas, these laws have been declared unconstitutional at a state level due to their violation of the First Amendment. In the hearing of PETA v. North Carolina Farm Bureau Federation, the law in question was the Property Protection Act, which aimed to punish “any person who intentionally gains access to the nonpublic areas of another’s premises and engages in an act that exceeds the person’s authority to enter.”[1] The law also aimed to prohibit capturing and photographing employer data in any manner that would “breach loyalty to the employer.”[2] These aspects of the law centered around the prohibition of recordings that only act in contrast to the employer's interest, which “per se constitute speech.” Since these recordings were found to be forms of speech under the Constitution, the restriction of these recordings is what ultimately led to the courts declaring these laws unconstitutional. Rulings in Iowa and Arkansas had similar outcomes due to the laws focusing on prohibiting the publication of information that would solely damage the company. In the Iowa case, the court ruled that the law failed to survive judicial scrutiny because the law intended to criminalize speech that “inflicts no specific harm” on property owners [3]. Ultimately, ag-gag laws limitations on speech directly violate rights guaranteed by the First Amendment.
The laws also violate the Free Press Clause of the First Amendment due to their prohibitions on recording and publishing any material obtained within their facilities. The First Amendment has been used to safeguard the right to gather information as a predicate to speech and press [4]. In PETA v. North Carolina Bureau Federation, the court ruled the North Carolina law prohibiting PETA investigators from recording to be unconstitutional [5]. This is because the First Amendment protects the right to record in nonpublic areas as part of newsgathering, so prohibitions of recording are not constitutional. The majority of cases that have struck down these laws in correspondence to Free Press Clause, such as those in Utah and Idaho, usually highlight the First Amendment’s ability to protect undercover journalists [6]. The judicial panel that deemed the Utah law unconstitutional stated that “investigative journalism has long been a fixture in the American press, particularly with regard to food safety.”[7] These court cases have demonstrated the unconstitutionality of previous “ag-gag” laws, which can be applied to current states as well.
In Arkansas, Missouri, Montana, and North Dakota, there are “ag-gag” laws still in effect. All four of these states’ laws have common clauses that specifically make it illegal to enter these farming facilities by false pretenses and obtain audio or visual recordings of the facility [8]. For example, a North Dakota ag-gag law currently makes it “illegal to enter an animal facility and use or attempt to use a camera, video recorder, or other audio recording equipment”[9] which essentially means that recording and documentation of information before its release is illegal. Similarly, the Montana law has made the action of entering these facilities without owner consent illegal if there is “intent to damage the enterprise of the facility.”[10] In regards to both of these state laws, the prohibition of recording in these facilities violates the Free Speech Clause of the First Amendment under the precedent set by PETA v. North Carolina Bureau Federation.
Despite these constitutional violations, those defending the agricultural companies argue that free speech is not protected under certain circumstances. The defendants of the agricultural companies claim that the laws are not violating freedom of speech because the whistleblowers are obtaining information under “false pretenses” and have “intent to harm the owner or its operations.”[11] For example, in a Kansas case, the defendants tried to assert that “the law forbade conduct, not speech, and that it only prohibits unprotected, false speech that is made with the intent to inflict harm.”[12] However, this argument did not stand in the court because the laws are worded in a way that try to forbid certain conduct, but they are ultimately prohibiting certain speech. Therefore, the law goes beyond regulating conduct and violates freedom of speech. Furthermore, in the case Animal Legal Defense Fund v. Iowa, the court declared that “false statements will be protected by the First Amendment only if they do not cause a ‘legally cognizable harm’ or provide ‘material gain’ to the speaker.”[13] In these cases of animal agriculture exposure, the speech that would be carried out by activists would not violate either exception to the freedom of speech. Beyond the speech argument, defendants have also tried to claim that the activists have no right to trespass on private property. In Wyoming, this approach worked, and the laws were upheld due to the court ruling that “there’s no constitutional right to trespass on private land.”[14] However, when the case appeared in the 10th U.S. Circuit Court of Appeals, the court ruled that free-speech rights are protected even when laws of trespassing have been violated [15]. Thus, the majority of the arguments that defendants have made in favor of the ag-gag laws are not strong enough to uphold the unconstitutional laws.
There have been many victories for animal rights and environmental activists in regards to striking down ag-gag laws. However, there are still states such as Alabama, Arkansas, Iowa, Missouri, Montana, and North Dakota that have these laws in full effect. The goals of these laws are to silence whistleblowers targeting the agricultural industry, which violates the First Amendment. The existence of these laws are inherently unconstitutional, and should not be allowed to stand in their respective states. Protecting the agricultural industry at the cost of Constitutional rights is a legal issue that needs to be addressed before more ag-gag laws are signed into place.
Bibliography
Kevin Guskiewicz, “NORTH CAROLINA FARM BUREAU FEDERATION, INC.,” n.d.
Ibid.
“ORDER Granting 49 Plaintiffs’ Motion for Summary Judgment; Denying 57 Defendants’ Motion for Summary Judgment for Animal Legal Defense Fund et al v. Reynolds et Al :,” Justia Dockets & Filings, accessed March 27, 2023, https://law.justia.com/cases/federal/district-courts/iowa/iasdce/4:2017cv00362/62561/79.
Guskiewicz, “NORTH CAROLINA FARM BUREAU FEDERATION, INC.,” n.d
Ibid.
Freedom of the Press. “Unconstitutional ‘Ag-Gag’ Laws Criminalize Journalism and Insulate Factory Farms from Accountability,” January 30, 2018. https://freedom.press/news/unconstitutional-ag-gag-laws-criminalize-journalism-and-insulate-factory-farms-accountability/.
Ibid.
Animal Welfare Institute. “Anti-Whistleblower (‘Ag-Gag’) Legislation,” n.d. https://awionline.org/content/anti-whistleblower-legislation.
Ibid.
Ibid.
Ibid.
Malo, Sebastien, and Sebastien Malo. “10th Circuit Rules Kansas ‘ag-Gag’ Law Unconstitutional.” Reuters, August 20, 2021. https://www.reuters.com/legal/litigation/10th-circuit-rules-kansas-ag-gag-law-unconstitutional-2021-08-19/.
https://cases.justia.com/federal/district-courts/iowa/iasdce/4:2017cv00362/62561/79/0.pdf?ts=1618257252
Gruver, Mead. “Wyoming ‘ag-Gag’ Law Suffers Appeals Court Blow,” AP NEWS, September 8, 2017, https://apnews.com/article/66d0a068a9d242b3865be4ae8016609b
Ibid.