Page 168 - September 2015

“Prohibiting
undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.”
John Alan Cohan
(310) 278-0203 johnalancohan@aol.com www.JohnAlanCohan.com.
by John Alan Cohan, Attorney at Law
“Ag-gag” is the term used to describe anti-whis- tleblower laws that apply within the agriculture industry. About half a dozen states have passed laws to criminalize surreptitious filming of alleged abuses of animals on farms and ranches. These laws are an attempt to prevent undercover investi- gative reporting or whistleblowing by employees, and to suppress the use of the videos to build sup- port for stronger penalties for the abuse of cows, chickens, hogs or other animals. Ag-gag laws are justified as a way of preventing interference with agricultural production.
The bills have been met with stiff and growing opposition in many states where the proposals have been defeated, including California, New York, Florida, Minnesota, Nebraska, Illinois and others. These laws have been criticized by various groups, which argue that they are intended primarily to censor animal welfare abuses by the agriculture industry from the public. At the same time, a new North Carolina law, the Property Protection Act, was enacted over the governor’s veto, and goes
into effect in January, 2016. (This law provides for “civil remedies for interference with property” and establishes a civil “right of action” for the owner
or person in lawful possession of property if that property is wrongfully taken or carried away. The target can be any person who enters the non-public area of another’s premises and then uses obtained information, including recorded images, sounds
or electronic surveillance, to breach the person’s “loyalty to the employer.”)
Are ag-gag laws constitutional? A new ruling issued by the U.S. District Court in Idaho held such a law to be unconstitutional as a violation of the First Amendment: “Although the State may not agree with the message certain groups seek
to convey about Idaho’s agricultural production facilities, such as releasing secretly recorded videos of animal abuses to the Internet and calling for boycotts, it cannot deny such groups equal protec- tion of the laws in their exercise of their right to free speech.” (See decision by Judge B. Lynn Win- mill in Animal Legal Defense Fund v. C.L. Butch Otter, Governor of Idaho.)
The court held Idaho’s ag-gag law, which created
a new crime, “interference with agricultural pro- duction,” to be unconstitutional primarily on First Amendment grounds in that the law was enacted with the discriminatory purpose of silencing animal rights
activists who conduct undercover investiga- tions in the agricultural industry.
Under the Idaho law, like those in other states, a journalist or animal rights investiga- tor could be convicted for not disclosing his media or political affiliations when request- ing a tour of an industrial feedlot, or applying for employment at a farm. And an employee could be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission.
These laws are thought to stifle public
debate about abusive practices that undercover investigations sometimes reveal. Supporters of
the laws claim they are needed to protect mem-
bers of the livestock and agriculture industries from “extreme activists who want to contrive issues simply
to bring in the donations.” One legislator in Idaho said that, “The most extreme conduct that we see threaten- ing Idaho dairymen and other farmers occurs under the cover of false identities and purposes. Extremist groups implement vigilante tactics to deploy self-appointed so-called investigators, who masquerade as employees to infiltrate farms in the hope of discovering and recording what they believe to be animal abuse.”
The judge’s ruling overturning the Idaho law stated that the law seeks to limit and punish those who speak out on topics relating to the agricultural industry, “striking at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public im- portance. Indeed, private party media investigations, such as investigative features on 60 Minutes, are a common form of politically salient speech.”
The court added: “Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.”
The court held that existing laws against trespass, fraud, theft, and defamation are adequate to protect live- stock facilities “without infringing on free speech rights.”
This ruling is a very important First Amendment case and is likely to end up in the Supreme Court.
John Alan Cohan is an attorney who serves the horse, livestock and farming industries. He can be reached at: (310) 278-0203, or email at johnalancohan@aol.com. His website is JohnAlanCohan.com.
FALL 2015
Are “Ag-Gag” Laws Constitutional?
166 SPEEDHORSE, September 2015
LEGAL TALK