Editor-In-Chief (2020 – 2021)
As factory farming1 becomes more and more prevalent in our nation’s society, concern for the well-being of farm animals (i.e., cows, pigs, chickens, etc.) continues to climb. As a result, many animal activists and animal welfare organizations have initiated undercover investigations of factory farms in an effort to reveal animal abuse and cruelty. Unfortunately, these investigations have exposed the horrendous conditions these animals are forced to endure. In response to these investigations, legislatures passed ag-gag laws to punish undercover reporting.
What are Ag-Gag laws?
As the name suggests, ag-gag laws are essentially designed to “gag” potential whistleblowers by prohibiting undercover investigators from recording footage of what goes on in these factory farms.2 While the language of these statutes vary from state to state, they effectively ban various types of audio and visual reporting on the agricultural industry and therefore curb constitutionally protected communications.3
Ag-gag laws can fall into three general categories. First, there are “agricultural interference” laws that ban recording images or sounds at industrialized farming operations without the owner’s consent.4 Second, there are “agricultural fraud” laws which ban entering or applying for employment at industrialized farming operations under false pretenses.5 Third, because legislators began having trouble passing these kind of ag-gag laws, “rapid-reporting” legislation emerged. This type of legislation mandates that anyone who records an image or sound at an industrialized farming operation turn the recording over to authorities within a specified amount of time, usually twenty-four to forty-eight hours.6
Whistleblowers and their investigative features have a lengthy history in America dating back to journalist Upton Sinclair's 1906 book The Jungle. Sinclair’s book uncovered atrocious conditions inside America's meatpacking plants that shocked the nation’s conscious.7 Sinclair’s whistleblowing led directly to the passage of the federal Meat Inspection Act, the Pure Food and Drug Act, and the eventual formation of the Food and Drug Administration.8
Why should we care?
As feared, undercover investigations have revealed severe animal abuse on factory farms. Evidence has shown animals being beaten, kicked, maimed, and thrown. Additionally, standard industry practices have been exposed to show the common practice of confining pregnant and nursing pigs in crates too small for them to turn around, removing the horns and tails of animals without the administration of anesthesia, and dragging sick cows on the ground before being slaughtered.9
Without undercover investigations, sadistic and often criminal acts of animal cruelty on factory farms would go undetected, unaddressed, and unpunished as would major threats to public health and the environment.10 For example, Mercy for Animals, an animal welfare organization, has conducted numerous undercover investigations that have revealed the horrors of factory farming. This includes high-speed slaughter lines of chickens,11 abuse of calves at dairy factory farms,12 and baby pigs being ruthlessly killed by having their heads smashed against the ground.13 It is the work of organizations like Mercy for Animals that uncover the horrors of factory farming that are being hidden by ag-gag laws.
Do Ag-Gag laws violate the First Amendment?
According to the First Amendment, prohibitions on speech must be content and viewpoint neutral.14 Laws that target speech based on content or viewpoint are presumptively unconstitutional and may be justified only if they pass strict scrutiny—a legal test that requires the government to prove that the law in question is narrowly tailored to serve compelling state interests.15
Laws that only regulate speech about the agriculture industry are not content-neutral because they single out the agricultural industry for special protection. Further, ag-gag laws are not viewpoint neutral because they only burden speech that is critical of the agricultural industry, not speech that is supportive of that industry.16
By requiring consent from the industry for any photographs or recordings, ag-gag legislation naturally benefits speech that favors the agricultural industry, while curbing critical speech. Even ag-gag laws that do not single out the agricultural industry for protection are not viewpoint neutral because general “gag” laws also target only speech critical of the enterprise in question.17 Therefore, ag-gag laws cannot pass strict scrutiny because they are both overinclusive and under-inclusive.
Further, the First Amendment also guarantees freedom of the press, yet ag-gag laws target the press’s ability to report on the agricultural industry. Legislative history shows that lawmakers have often been concerned with the disclosure of industry practices to the media.18 Ag-gag laws target not only the act of recording, but also the distribution of recordings to the public by the media. Thus, when ag-gag laws deliberately restrict an individual’s ability to report violations of the law to governmental bodies, they also violate the First Amendment’s guarantee of “the right to petition the government for a redress of grievances.”19
Proponents argue that ag-gag laws are used as a safeguard to protect well-intentioned farmers against animal protection organizations who present their footage in a misleading way. Opponents, on the other hand, argue ag-gag laws are used to hide animal abuse from the public and that these laws allow factory farming operations to put profit before farmed animal welfare.20
After learning what ag-gag laws are and their inherent purpose, the obvious question is: What are these factory farms trying to hide? Granted, those targeted by undercover videos have every right to pursue legal recourse if they feel they are misrepresented. In fact, that is what anti-defamation laws were designed for. But the law should not be used to stifle the videos themselves. If factory farms feel the need to prevent the broadcasting of their operations, perhaps that says something about the practices they have made habit.
1 Factory farms typically consist of large numbers of animals being raised in extreme confinement. From birth to slaughter, animals on factory farms are regarded as commodities for profit. Animals on these farms undergo painful mutilations, and are bred to grow unnaturally fast and large for the purpose of maximizing meat, egg, and milk production. See https://www.farmsanctuary.org/issue/factory-farming/.
2 Ag-Gag Laws, Animal Legal Defense Fund, https://aldf.org/issue/ag-gag/.
3 Simren Verma, As ‘ag-gag’ laws gain momentum, opponents fight them in court, Reporters Committee for Freedom of the Press (Mar. 6, 2020), https://www.rcfp.org/rcfp-fights-ag-gag-laws/.
4 Alicia Prygoski, Brief Summary of Ag-gag Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/article/brief-summary-ag-gag-laws.
6 Alicia Prygoski, Brief Summary of Ag-gag Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/article/brief-summary-ag-gag-laws.
7 What Is Ag-Gag Legislation?, American Society for the Prevention of Cruelty to Animals (June 2020) https://www.aspca.org/animal-protection/public-policy/what-ag-gag-legislation.
9 Ag-Gag Laws, Animal Legal Defense Fund, https://aldf.org/issue/ag-gag/.
10 Nathan Runkle, Undercover videos critical to exposing abuse, USA Today (Aug. 13, 2015), https://www.usatoday.com/story/opinion/2015/08/13/undercover-videos-exposing-abuse-column/31208801/.
11 Mercy for Animals, Undercover Investigation Reveals the Horrors of High-Speed Slaughter Lines, YouTube (May 28, 2020), https://youtu.be/IayFKuxqODo.
12 Mercy for Animals, Heartbreaking Footage Shows Baby Cows Stolen from Their Mothers, YouTube (Sep. 19, 2017), https://youtu.be/dZQ3sl0xNC4.
13 Mercy for Animals, Firsts, YouTube (Nov. 13, 2018), https://youtu.be/9XuDZ4sfzqw.
14 David L. Hudson Jr., Content Based, The First Amendment Encyclopedia (2009), https://www.mtsu.edu/first-amendment/article/935/content-based. Content neutral refers to laws that apply to all expression without regard to the substance or message of the expression. Viewpoint neutral refers to the idea that when government actions implicate the speech rights of groups and individuals, those actions may not discriminate based on the message advocated.
15 Chris Gibbons, Ag-Gag Across America: Corporate-Backed Attacks on Activists and Whistleblowers, Center for Constitutional Rights and Defending Rights & Dissent (2017), https://ccrjustice.org/sites/default/files/attach/2017/09/Ag-GagAcrossAmerica.pdf.
20 Alicia Prygoski, Brief Summary of Ag-gag Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/article/brief-summary-ag-gag-laws.