Ag-gag Laws

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Brief Summary of Ag-gag Laws
Alicia Prygoski (2015)

As industrialized farming (also known as factory farming) has become more common in our nation’s culture, concern for the welfare of farmed animals has increased, as well. Because of this, many animal protection organizations have made undercover investigations of industrialized farming operations an integral part of their missions. The goal of these investigations is to expose possible abuse of farmed animals that would otherwise be hidden from the public. Many investigations have indeed exposed rampant farmed animal abuse, which has led to grave economic consequences for industrialized farming operations; in some cases the farms even have to shut down.

Ag-gag laws were introduced as a response to undercover investigations. They prohibit or restrict recording at industrialized farming operations. Prior to 2011, similar laws, known as ecoterrorism laws, were passed to protect industrialized farming operations from trespassers looking to damage property. Modern-day (post-2011) ag-gag laws, though, are more focused on preventing economic damage than actual physical harm. Proponents argue that they are a safeguard to protect well-meaning farmers against animal protection organizations who present the footage in a misleading way, while opponents argue ag-gag laws are meant to hide animal abuse from the public and that these laws allow industrialized farming operations to put profit ahead of farmed animal welfare.

Ag-gag laws generally fall into one of three categories or a combination of two or all types. The first modern-day ag-gag laws are known as “agricultural interference” laws, and they ban recording images or sounds at industrialized farming operations without the owner’s consent. “Agricultural fraud” laws were also introduced early on; this kind of ag-gag law bans entering or applying for employment at industrialized farming operations under false pretenses. Many ag-gag bills introduced in 2011-2012 were “agricultural interference” and “agricultural fraud” hybrids. Because legislators ran into problems passing these kind of ag-gag laws, a new type of ag-gag emerged in late 2012. This kind is known as “rapid-reporting” legislation and it 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.

Twenty-five states have attempted to pass modern-day ag-gag laws, and six of those states have succeeded. The states that have passed ag-gag laws are (in chronological order), Iowa Utah, Missouri, Idaho, Wyoming, and North Carolina. The first five impose criminal penalties, while North Carolina’s is the first ag-gag law in the nation to impose a civil sanction.

Utah and Idaho’s ag-gag laws were challenged in court on the grounds that they are unconstitutional. Idaho’s law was struck down by the United States District Court in 2015 as a violation of free speech and equal protection. A decision in the Utah court is pending.  

Overview of Ag-gag Laws
Alicia Prygoski (2015)

Ag-gag laws, also known as “agricultural interference/fraud” laws, are laws designed to prohibit recording or undercover investigations at industrialized farming operations (commonly known as factory farms). Current day ag-gag laws have their roots in the ecoterrorism laws of the early 1990s, but in recent years, there has been a clear shift in priority away from preventing trespassing and property destruction to controlling and stopping recording on industrialized farming operations. This shift is in large part due to the increased prevalence of undercover investigations by animal protection organizations at industrialized farming operations. Over the past few years, numerous investigations have exposed widespread animal abuse and legal violations at various farming operations that have led to economic harm and prosecutions. In some cases, the economic losses are so extreme that industrialized farming operations have gone bankrupt and completely shut down as a result. So, many legislators have introduced ag-gag bills claiming that they will protect well-intentioned farm owners from deceitful or misleading investigations and subsequent dissemination of recordings to the media. Opponents of the bills argue, however, that the true purpose is to prevent whistleblowers from exposing animal abuse and public safety violations that occur at industrialized farming operations.

Since 2011, twenty-five states have introduced, and six of those states have passed some form of ag-gag law. These laws generally fall into one of three categories, or a hybrid of the three:

  1. Agricultural interference laws, which prohibit recording images or sounds at industrialized farming operations without consent of the owner;
  2. Agricultural fraud laws, which prohibit obtaining access to, or applying for a job at industrialized farming operations by false premises or misrepresentation;
  3. Rapid-reporting laws, which require anyone who records images or sounds at an industrialized farming operation to turn the recordings over to law enforcement within a designated period of time, usually twenty-four to forty-eight hours.

Violation of these laws results in either criminal or civil punishment depending on the state. Fines range from $500.00 to $5,000.00 per day that the violation of law was committed. In Washington, where an ag-gag law is pending, perpetrators may also be liable for up to three times the amount of economic loss stemming from the undercover recording. Criminal misdemeanors are most often imposed, but some states increase the penalty to a felony for subsequent charges or in extreme cases of damage.

Iowa was the first state to pass a modern-day (post-2011) ag-gag law. The law created a new class of crime, called “agricultural operation interference” which placed a complete ban on recording images or sound at an industrialized farming operation and criminalized applying for employment under false pretenses. Utah, Idaho, Wyoming, Missouri, and North Carolina have since followed suit, passing their own forms of ag-gag laws. Iowa’s law is similar to Utah’s in that it is a hybrid of the “interference” and “fraud” type ag-gag laws – it prevents false identification on an employment application with the intent to record images, and it also prohibits recording and distributing recordings taken at an industrialized farming operation. Idaho’s law similarly contains prohibitions on misrepresentation, fraudulent activity, and recording. Wyoming’s law trends toward an “interference” ag-gag law because it prevents trespassing to unlawfully collect data, but it is not considered a classic ag-gag law. Missouri’s ag-gag law is the only rapid-reporting ag-gag law in the country and it imposes a twenty-four hour deadline. North Carolina’s law is unique; proponents argue that it is not an ag-gag law at all because it does not specifically mention the agriculture industry, but opponents claim it will have the exact effect as ag-gag laws in other states. It prohibits employees “exceeding access to authority” at a workplace which includes recording images or sounds in a non-public area of the premises. North Carolina’s law is the only civil ag-gag law to have passed; the rest impose criminal charges.

Two of these laws, Utah’s and Idaho’s have been challenged in court on the grounds that they are unconstitutional under the first and fourteenth amendments. Idaho’s law was recently struck down by the United States District Court in Animal Legal Defense Fund v. Otter, 2015 WL 4623943 (D. Idaho Aug. 3, 2015) (Not Reported in F.Supp.3d), as a violation of free speech and equal protection. A decision in the Utah court is pending.

In 2013, Amy Meyer was the first person to be prosecuted under a state-level ag-gag law. She was prosecuted under Utah’s law for recording an image of a cow at an industrialized farming operation from across the street. The charges against her were eventually dropped. The second instance of prosecution under an ag-gag law occurred a year later, again in Utah, when four people were prosecuted for photographing an industrialized farming operation from a highway. These charges were dropped, as well. 

Related articles

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg, 13 Cardozo Pub. L. Pol'y & Ethics J. 625 (2015).

Animal Lovers and Tree Huggers Are the New Cold-Blooded Criminals?: Examining the Flaws of Ecoterroism Bills, Dara Lovitz, 3 J. Animal L. 79 (2007).

Related cases

ALDF v. Otter, Not Reported in F.Supp.3d, 2015 WL 4623943 (D. Idaho Aug. 3, 2015). The Animal Legal Defense Fund, and various other organizations and individuals, challenge Idaho Code § 18–7042 as unconstitutional. Section 18-7042 criminalizes undercover investigations of agricultural production facilities. ALDF alleges that § 18–7042 has both the purpose and effect of stifling public debate about modern agriculture. The Court first found that § 18–7042 is both content and viewpoint based, and thus, must survive the highest level of scrutiny. The Court held that the law does not survive strict scrutiny because it "would contravene strong First Amendment values to say the State has a compelling interest in affording these heavily regulated facilities extra protection from public scrutiny." Even if the interests in property and privacy of these industries is compelling, the law is not narrowly tailored as it restricts more speech than necessary and poses a "particularly serious threat to whistleblowers' free speech rights."

ALDF v. Otter, 44 F. Supp. 3d 1009 (D. Idaho 2014) (D. Utah July 22, 2013). In a ‘hold your tongue and challenge now’ First Amendment challenge to an Idaho statute that criminalizes undercover investigations and videography at “agricultural production facilities,” the Animal Legal Defense Fund, as well as various other organizations and individuals, (collectively, “ALDF”), brought suit. The State defendants, Governor Butch Otter and Attorney General Lawrence Wasden, moved to dismiss the ALDF's claims. The claims against the Governor were dismissed under 11th Amendment immunity because the ALDF failed to explain the requisite connection between the Governor and enforcement of section 18–7024. The court also found that since the ALDF failed to allege a concrete plan to violate subsection (e), it lacked standing to challenge section 18–7042(1)(e) and the claim in regards to that provision was therefore dismissed. However, the ALDF’s First Amendment, bare animus Equal Protection, and preemption claims survived the motion to dismiss.

ALDF v. Herbert, 2013 WL 4017889 (D. Utah July 22, 2013). The Animal Legal Defense Fund and other plaintiffs challenged Utah Code Ann. § 76-6-112, which criminalizes recording images or sounds at industrialized farming operations, and entering industrialized farming operations by false pretenses or misrepresentation. The Plaintiffs alleged that § 76-6-112 violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Defendants moved to dismiss on the grounds that the Plaintiffs had not suffered actual harm, and thus did not have standing. The U.S. District Court Judge dismissed some Plaintiffs from the case, but allowed it to move forward.

Related laws

List of state Ag-gag and "ecoterrorism" laws

Related Links

External Links:

Will Potter's website, Green is the New Red:

ASPCA: Ag-Gag Bills at the State Level:

Links in the Web Center:

Topical Introduction on Agroterrorism/Ecoterrorism Laws (2011)

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