By Ellen Essman, Sr. Research Associate, Ohio State University Agricultural & Resource Law Program
Nationwide, it seems as though “ag-gag” laws are being challenged and overturned left and right. “Ag-gag” is the term for laws that prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at livestock facilities. “Ag-gag” also describes laws which make it illegal for undercover persons to use deception to obtain employment at livestock facilities. Many times, the laws were actually passed in response to under-cover investigations which illuminated conditions for animals raised at large industrial farms. Some of the videos and reports produced were questionable in nature — they either set-up the employees and the farms, or they were released without a broader context of farm operations. The laws were meant to protect the livestock industry from reporting that might be critical of their operations — obtained through deception and without context, or otherwise.
Here in Ohio, we do not have an ag-gag law; instead we have the Ohio Livestock Care Standards, which are rules for the care of livestock in the state. The rules are made by the Ohio Livestock Care Standards Board, which is made up of farmers, food safety experts, farmers’ organizations, veterinarians, the dean of the agriculture department from an Ohio college or university, consumers, and county humane society representatives. There are standards for the care of different species of livestock, as well as standards for euthanizing livestock, feeding and watering livestock, transporting livestock, etc. Violating the standards could lead to civil penalties. Part of the thinking behind the Livestock Care Standards was that by bringing together farmers, veterinarians, and animal welfare representatives, among others, all sides would be represented, and therefore ag-gag laws and deceptive reporting could be avoided. The laws regarding the Ohio Livestock Care Standards can be found here, and the regulations here.
Kansas law challenged
On December 4, 2018, the Animal Legal Defense Fund (ALDF), along with other animal and food safety organizations, filed a complaint against the state of Kansas, arguing that the state’s ag-gag law is unconstitutional on freedom of speech grounds.
Kansas’ ag-gag law can be found in the Kansas Statutes, sections 47-1826, 47-1827, 47-1828 and 21-6604. The law, among other things, makes it illegal, “without the effective consent of the owner,” to “enter an animal facility to take pictures by photograph, video camera or by any other means” with the “intent to damage the animal facility.” The law also makes it illegal for someone to conceal themselves in order to record conditions or to damage the facility. “Effective consent” cannot be obtained by “force, fraud, deception, duress, or threat,” meaning it is not permissible for an undercover whistleblower to apply for a job at an animal facility and work at the facility if they really intend to record and disseminate the conditions.
ALDF and their fellow plaintiffs argue that the Kansas ag-gag law violates the First Amendment guarantee of freedom of speech. The plaintiffs argue that purpose of the Kansas law is to suppress certain kinds of political speech, namely the speech of animal rights activists and food safety organizations “because of their viewpoint and the content of their messages.” The plaintiffs assert that “[t]he law ensures only [the livestock] industry’s side of the debate” is heard. Furthermore, the plaintiffs argue that the Kansas law is overbroad in its attempt to limit freedom of speech, “prohibiti[ng] substantially more speech than the First Amendment permits.” The Kansas lawsuit is very similar to one in Iowa, where the judge recently overturned the state’s ag-gag statute.
Iowa law overturned
On January 9, 2019, James E. Gritzner, a U.S. District Court judge in the Southern District of Iowa found Iowa’s ag-gag law to be unconstitutional on First Amendment grounds. Like the complaint in Kansas, this lawsuit was initiated by ALDF and other groups against the state of Iowa. Gritzner’s decision is available here.
Iowa’s law, which, as of this writing is still available here, makes it a crime to “[o]btain access to an agricultural production facility by false pretenses,” and/or “[m]ake a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.”
Much like the Kansas lawsuit discussed above, the plaintiffs in this case argued that Iowa’s law was content-based, viewpoint-based, and overbroad, and thus violated the First Amendment right to free speech. Judge Gritzner agreed.
Judge Gritzner used precedent to explain that “a free speech challenge proceeds in three stages. First, the Court resolves whether the challenged statute implicates protected speech. If it does, the Court determines which level of scrutiny applies. Then, the Court applies the appropriate scrutiny and confirms whether the statute satisfies the applicable standard.”
In this case, Gritzner found that the speech being implicated, “false statements and misrepresentations,” was protected speech, citing the Supreme Court to make his point: “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.” In other words, even though the protected speech in this case consists of false statements, such speech is still protected under certain circumstances.
Secondly, Judge Gritzner weighed in on the issue of scrutiny. Here, it was a question of whether to apply strict scrutiny, which the plaintiffs argued should apply, or intermediate scrutiny, which the defendants favored. Strict scrutiny requires that the challenged law deals with a compelling state interest, and that the law is narrowly tailored to accomplish that interest. Intermediate scrutiny is a step down from strict scrutiny; it requires the law to serve an important government objective, and to be substantially related to realizing that objective. Gritzner reasoned that it didn’t matter which level of scrutiny applied, because the Iowa law did not pass either one of the scrutiny tests.
Finally, Gritzner explained why the Iowa statute did not satisfy either scrutiny standard. Here, the state of Iowa argued that the law was meant to protect the “state’s interests of private property and biosecurity.” Judge Gritzner noted that private property and biosecurity were not the only reasons for the statute—at least one state senator had been quoted as saying that the bill was meant to stop groups from giving “the agriculture industry a bad name.” In addition, Gritzner reasoned that these interests were not “compelling,” pointing to case law that found similar interests—protection to animals, people, and property—did not fall under the “compelling” category. Furthermore, Gritzner found that the statute was not “narrowly tailored,” because the language was not “actually necessary to protect perceived harms to property and biosecurity.” In other words, Gritzner thought it was a stretch to believe that someone giving a false statement or misrepresentation in order to access or become employed by an agricultural production facility is really related to property damage or biological harm. Gritzner also pointed out that Iowa has protected against such harms elsewhere in its statutes in “content neutral” language that does not affect freedom of speech. The judge did not spend much time discussing intermediate scrutiny, instead he explained that the Iowa law is simply too broad, harm is unlikely, and the need to prohibit the lies is small, which can be interpreted to mean that the law does not serve an important government objective.
Future not looking good for ag-gag laws
Several other states — including Idaho, Missouri, Montana, North Carolina, North Dakota, and Utah, have passed ag-gag laws similar to the laws in Kansas and Iowa. However, the laws have also been overturned in several states. In January 2018, the Ninth Circuit Court of Appeals determined most of Idaho’s ag-gag law violated the First Amendment. A federal district court in Utah also struck down Utah’s ag-gag law for violating freedom of speech. A similar lawsuit against a North Carolina law is also in progress. The North Carolina lawsuit will be an interesting one to watch since the statute applies to other property owners, not just those involved in agriculture. Time will tell whether the remaining state ag-gag laws meet constitutional muster.