Bound & Gagged: Potential First Amendment Challenges to "Ag-Gag" Laws

Article excerpt

In an effort to stifle undercover investigations of factory farms, the agricultural industry has pushed forward a slate of bills that limit audio and video recording on farms. This Note describes the different types of "ag-gag" bills legislators have proposed across the nation, and evaluates potential First Amendment challenges to the bills. The Note concludes that the ag-gag laws most likely to pass do not obviously implicate First Amendment rights and advises activists to plan their investigations in anticipation of future legal challenges.

INTRODUCTION

In recent years, a series of undercover videos have exposed shocking animal abuses and unsanitary practices at factory farms across the country. One 2011 video showed employees at a Texas cattle farm bashing cows' heads with pickaxes. (1) Another, filmed in 2009 at a Vermont slaughterhouse, showed a worker pouring water on a downed calf'S head to increase the electric current as he shocked the calf again and again. (2) In California, a 2008 video showed workers pushing downed cows with a forklift to force them to stand for inspection. (3) The workers then subjected the cattle to a "veterinary version of waterboarding" by shooting high-intensity water sprays up their noses. (4)

The abuses in Texas and Vermont both led to criminal charges against the farm operators and the employees who perpetrated the violent acts. (5) The California video led not only to criminal charges of animal abuse, but also to the largest meat recall in U.S. history: 143 million pounds of beef--the meatpacker's entire production for two years--were recalled. (6)

These exposes impose high costs on the meat industry in the form of litigation, recalls, and lost sales. (7) To shut off this costly flow of undercover videos, politicians across the nation have recently pushed forward a series of anti-whistleblower bills known as "ag-gag" laws. (8) Although they can take different forms, the ag-gag bills all work to severely limit documentation of agricultural activities. (9) Three states have had similar laws on the books since the 1990s, although they were seemingly uncontroversial when passed and are rarely, if ever, applied. (10) But between 2011 and 2013, legislative interest in ag-gag bills exploded. Legislators in sixteen states introduced ag-gag bills. (11) So far, only Iowa and Utah successfully enacted the bills, (12) but ag-gag laws remain pending in nine states. Despite this relatively low success rate, more and more state legislators are proposing ag-gag bills. Two bills were introduced in 2011, six in 2012, and nine in 2013. (13)

This Note provides an overview of ag-gag bills in the context of the First Amendment. Are any of these ag-gag bills constitutional? If so, are some more likely to pass constitutional muster than others? Part I provides an overview of applicable First Amendment doctrine. Part II examines the different forms taken by ag-gag laws across the nation and explores potential First Amendment challenges to the ag-gag bills. Part II also touches on "animal terrorism" laws, which are not always included under the ag-gag umbrella, but can also be used to restrict documentation of farm activities. Part III proposes precautions undercover activists can take to protect themselves against the ag-gag laws.

I. POTENTIAL FIRST AMENDMENT CHALLENGES TO AG-GAG LAWS

Opponents often assert that ag-gag bills are unconstitutional. (14) As Part II will explore, the accuracy of that assessment depends greatly on the form of the bill. The content of the bills varies significantly from state to state. In general, though, the ag-gag bills can be roughly grouped into five categories. The specific characteristics of these bills will be explored in greater detail in Part II. In brief, each ag-gag bill is drafted to criminalize one of the following behaviors:

* Filming any agricultural activities (often called bans on "agricultural interference");

* Employment fraud in agricultural settings;

* Distribution of agricultural recordings;

* Trespass in agricultural facilities; and

* Delayed reporting of animal abuse. …