Ag-Gag Laws Face the First Amendment

When Upton Sinclair published The Jungle, a reported novel that exposed the abuse of power in Chicago’s meatpacking industry, the public response was immediate, and federal regulation soon followed. More than a century later, whistleblowers play a major role in shaping public opinion and policy around agricultural practices. However, many states have enacted laws to punish journalists and activists who go undercover to expose abuse of animals at agricultural facilities.

In recent years, more than a dozen states with large agricultural sectors have passed laws limiting the recording of farming practices. So far, several have been found unconstitutional. In his July 2017 ruling against Utah’s “ag-gag” law, U.S. District Judge Robert Shelby concluded that the state “undoubtedly has an interest in addressing perceived threats to the state agricultural industry, and as history shows, it has a variety of constitutionally permissible tools at its disposal to do so. Suppressing broad swaths of protected speech without justification, however, is not one of them.”

Animal Legal Defense Fund v. Herbert>
Ag-Gag Landscape October 2017, Source: ASCPA

The First Amendment protects videos and movies, but the Supreme Court has not ruled whether it applies to the recording of videos. However, a number of federal courts have ruled that it does. The U.S. Seventh Circuit Court of Appeals in 2012 ruled that “making an audio or video recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”

American Civil Liberties Union v. Alvarez>

Likewise, the U.S. Third Circuit Court of Appeals in 2017, in a case involving the recording of a video of police, said: “The First Amendment “protects actual photos, videos and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.”

Fields v. City of Philadelphia>

First Amendment protection should not evaporate when professional journalists or “citizen journalists” engage in lies to gain access to agricultural facilities. In United States v. Alvarez, the Supreme Court ruled that only false statements that cause “legally cognizable harms” do not enjoy First Amendment protection. The harms cited by state legislators include protection of animals and employees, but there is no evidence that a journalist or activist who gains access to an agricultural facility causes any such harm.

Ag gag laws are vulnerable to attack under the First Amendment in several ways, including:

They May Be Content-Based Restrictions

Laws that target the content of speech—by subject matter or viewpoint—are presumed to be violations of the First Amendment. Many ag-gag laws are vulnerable to attack as content-based restrictions because they ban the making of videos specifically in agricultural operations. To overcome the presumption that such a law is unconstitutional, the government must satisfy “strict scrutiny” review—that the restriction satisfies a compelling state interest by the least restrictive means available.


States, though, are unlikely to prove a compelling interest. They often argue that banning undercover reporting and videos from agricultural facilities prevents danger to employees and of spreading disease to animals. But, as the Judge Shelby noted in Animal Legal Defense Fund v. Herbert, the legislative history of the ag-gag law in Utah was “entirely devoid” of any such considerations. It was instead “rife with discussion of the need to address harm caused by ‘national propaganda groups.’” He summarized: “What the Act appears perfectly tailored toward is preventing undercover investigators from exposing abuses at agricultural facilities.” Nor, said Shelby, was the law narrowly tailored; there were many strategies that the state could have employed to actually protect employees and workers.

The Law May Operate as a Prior Restraint

Some ag-gag laws or bills may ban the distribution of videos shot by undercover journalists and activistsin agricultural facilities. This restriction acts like a prior restraint on the publication of information. Prior restraints have traditionally been regarded as the most egregious violations of the First Amendment, and are valid only where the government can prove imminent and irreparable harm—a tough standard that would almost certainly not be met in the context of shooting video at an agricultural facility.

The Restrictions May Be Overly Broad

A law may violate the First Amendment when it is overly broad—that is, if some of its applications in the real world would violate protected speech. Some ag-gag laws, for example, may ban video and photography so broadly that they criminalize clearly protected activities. A tourist taking photos might be prosecuted under the law, for example.

Potential Liability for Newsgathering Wrongs

The First Amendment does not protect journalists from potential civil and criminal liability for wrongs committed in newsgathering such as fraud, trespass, and beach of the duty of loyalty. In perhaps the most prominent case, ABC reporters went undercover to obtain employment at two Food Lion grocery stores. They secretly filmed employees engaging in unsanitary food handling practices. Food Lion did not sue for defamation, on which it had little chance of winning, focusing instead on newsgathering practices. T

he U.S. Fourth Circuit Court of Appeals affirmed liability of ABC for trespass

and breach of the duty of loyalty, but assessed damages of just $2 (the jury had awarded $5.5 million in damages, which had been reduced by the trial judge to $315,000.). The court did apply the First Amendment to justify lowering the damage award. Since Food Lion had avoided filing a libel claim, it could not get libel-type damages without meeting the requirements of proving an intentional or reckless falsehood, the standard for libel cases involving public figures such as Food Lion

For further reading:

Bound and Gagged: Potential First Amendment Challenges to “Ag-Gag” Laws> ASPCA>

Ag-Gag Laws and History

Judge Robert J. Shelby

Judge Robert J. Shelby, of the U.S. District Court for Utah, provided a history of ag-gag laws in his decision, Animal Legal Defense Fund v. Herbert (Case No. 2:13-cv-00679-RJS, 2017):

“For as long as farmers have put food on American tables, the government has endeavored to support and protect the agricultural industry. In an address to Congress shortly after the Revolutionary War, George Washington, an ardent tobacco farmer, declared that ‘agriculture is of primary importance,’ and argued that the rapid growth of the young nation rendered ‘the cultivation of the soil more and more an object of public patronage.’ Congress heeded the call, and federal legislation in the ensuing decades led to the development of millions of acres of farmland across the country.

“As agriculture expanded, so too did governmental investment in it. Toward the end of the nineteenth century, President Lincoln established the Department of Agriculture—known then as ‘The People’s Department’—and Congress began providing cash to states to conduct agricultural research. In the mid-twentieth century, following the Great Depression, President Roosevelt’s administration went so far as to pay farmers to stop growing crops and to destroy existing crops and livestock in order to stabilize prices by artificially limiting supply. To this day, the federal government has continued to support the agricultural industry through measures like nonrecourse loans, subsidies, and price guarantees, as have the states, all of which have enacted right-to-farm laws. In short, governmental protection of the American agricultural industry is not new, and has taken a variety of forms over the last two hundred years.

“What is new, however, is the recent spate of state laws that have assumed an altogether novel approach: restricting speech related to agricultural operations. These so-called ‘ag-gag’ laws have their genesis in the 1990s. Around that time, animal rights advocates had begun conducting undercover investigations to expose animal abuse at various facilities. After these initial investigations became public, Kansas, Montana, and North Dakota all enacted ag-gag laws. The laws criminalized entering an animal facility and filming without consent.

“Nobody was ever charged under these laws, and for nearly two decades no new ag-gag legislation was introduced. That changed, however, after a series of high profile undercover investigations were made public in the mid to late 2000s.

“To name just a few, in 2007, an undercover investigator at the Westland/Hallmark Meat Company in California filmed workers forcing sick cows, many unable to walk, into the “kill box” by repeatedly shocking them with electric prods, jabbing them in the eye, prodding them with a forklift, and spraying water up their noses.

“A 2009 investigation at Hy-Line Hatchery in Iowa revealed hundreds of thousands of unwanted day-old male chicks being funneled by conveyor belt into a macerator to be ground up live.

“That same year, undercover investigators at a Vermont slaughterhouse operated by Bushway Packing obtained similarly gruesome footage of days-old calves being kicked, dragged, and skinned alive.

“A few years later, an undercover investigator at E6 Cattle Company in Texas filmed workers beating cows on the head with hammers and pickaxes and leaving them to die. And later that year, at Sparboe Farms in Iowa, undercover investigators documented hens with gaping, untreated wounds laying eggs in cramped conditions among decaying corpses.

“The publication of these and other undercover videos had devastating consequences for the agricultural facilities involved. The videos led to boycotts of facilities by McDonald’s, Target, Sam’s Club, and others. They led to bankruptcy and closure of facilities and criminal charges against employees and owners. They led to statewide ballot initiatives banning certain farming practices. And they led to the largest meat recall in United States history, a facility’s entire two years’ worth of production.

“Over the next three years, sixteen states introduced ag-gag legislation. Iowa’s was the first to go into effect. It was introduced in the wake of the Iowa Sparboe Farms video, in addition to the publication of several other undercover investigations in Iowa. According to its sponsors, the bill’s purpose was ‘to crack down on activists who deliberately cast agricultural operations in a negative light and let cameras roll rather than reporting abuse immediately,’ and to stop ‘subversive acts’ that could ‘bring down the industry,’ including acts committed by “extremist vegans.” The Iowa law prohibits obtaining access to an agricultural production facility under false pretenses and lying on a job application with the intent to commit an unauthorized act.

“Utah’s bill came less than a month later. Representative John Mathis, the sponsor of the House bill, declared the bill was motivated by “a trend nationally of some propaganda groups . . . with a stated objective of undoing animal agriculture in the United States.” Another representative (a farmer by trade) stated that the bill was targeted at “a group of people that want to put us out of business,” and noted that farmers ‘don’t want some jack wagon coming in taking a picture of them.’ Senator David Hinkins, the sponsor of the Senate bill, declared the bill was meant to address the ‘vegetarian people that [are] trying to kill the animal industry’ by ‘hiding cameras and trying to . . . modify the films and stuff like that,’ explaining ‘[t]hat’s what we’re trying to prevent here.'”