On March 12, 2020, a group of animal rights and environmental conservation organizations filed to appeal the state’s far-reaching ag-gag law.
The appeal was filed in the U.S. Court of Appeals for the Eighth Circuit following a lower court’s dismissal of a suit that claimed that the ag-gag law violated the First and Fourteenth amendments.
Arkansas’ law, enacted in 2017, not only allows farm factories to sue whistleblowers who expose unsafe or illegal conditions, but it also bans undercover investigations of virtually all private entities including nursing homes and daycare centers.
“Animal cruelty and environmental crimes are more likely to occur when transparency is denied and whistleblowers are silenced,” said Hannah Connor, an attorney at the Center for Biological Diversity and one of the plaintiffs in the suit. “Industrial animal facilities generate massive amounts of pathogens, feces, heavy metals and other contaminants. Amid our escalating extinction crisis, the public has a right to know if these pollutants are making their way into waterways and the habitats needed by endangered animals to survive.”
Center for Biological Diversity
The U.S. Court of Appeals for the Fourth Circuit ruled Feb. 23, 2023 that North Carolina’s ag-gag law in relation to undercover investigations by the People for the Ethical Treatment of Animals, (PETA), is unconstitutional.
“We enjoin North Carolina from applying the Act to PETA’s newsgathering activities but sever and reserve all other applications for future case-by-case adjudication,” wrote Senior Circuit Judge Henry Floyd in the 2-1 decision.
While the court’s decision was complex, it held that the right to engage in “undercover investigations in nonpublic areas” is constitutional, but landowners and employers also have the right to “deny entry to journalists who seek to secretly record its inner workings.”
It held that “it suffices to hold only that recording in the employer’s nonpublic areas as part of newsgathering constitutes protected speech.” The court found that because certain applications of the law could potentially be constitutional, it declined to enjoin the law on its face.
Fourth Circuit decision
On June 15, 2020, the U.S. District Court for the Middle District of North Carolina ruled that a number of provisions in the state’s ag-gag law violated the First Amendment.
The Property Protection Act was written differently than most other states’ ag-gag laws. “Instead of imposing criminal penalties, the bill allowed employers to sue employees who plant hidden cameras, make secret recordings, capture or remove documents from their workplaces, or interfere with the ‘possession of real property’,” according to Successful Farming.
In his ruling, District Court Judge Thomas D. Schroeder wrote that the parts of the bill that prevented animal rights groups and others from doing undercover investigative work violated the free speech rights.
“These provisions will always target speech, and speech will always be the activity that triggers liability. No set of circumstances changes the fact that these subsections, as written, are unconstitutional under the First Amendment, and as such, are facially invalid,” Schoeder wrote.
David Muraskin, an attorney with Public Justice, a nonprofit law firm representing the group that challenged the Act, spoke with journalist Barry Yeoman. Muraskin said the ruling was timely given concerns that slaughterhouses weren’t doing enough to protect their employees from the coronavirus. According to the Food & Environment Reporting Network, at least 700 coronavirus cases in North Carolina can be traced back to pork and chicken processing plants.
“Given everything that we know is going on in North Carolina slaughterhouses — about the risk that employees are being subject to today because of COVID-19 — I think it’s a particularly important moment to get that clear: the threat of civil sanction from warning the public about the risks you’re facing in these workplaces … you should be much less fearful of this law.”
Ruling Successful Farming
Nov. 17, 2021: Kansas petitioned the Supreme Court to hear its case, but on April 25, 2022, the U.S. Supreme Court declined to review the Tenth Circuit’s Aug. 19 decision.
On Aug. 19, 2021, the United States Court of Appeals for the Tenth Circuit rejected Kansas’ appeal to review a lower court’s ruling that found certain provisions in its ag-gag law violated the First Amendment.
The provision in question prohibited people from lying in order to gain access to an animal facility with the intent to harm the business.
In its appeal, Kansas’ lawyer claimed that the provision was constitutional because it only targeted false speech used to commit a crime—in this case, trespassing. But the Tenth Circuit rejected this argument, writing that the law discriminated against speakers based on viewpoint. For example, if a person lied in order to gain access to the facility with the intention to benefit the business, the law would not apply.
“Even if deception used to obtain consent to enter is unprotected speech due to the entry upon private property, Kansas may not discriminate between speakers based on the unrelated issue of whether they intend to harm or help the enterprise. But that is the effect, and stated purpose, of the provisions at issue. And the statute is not limited to false speech lacking constitutional protection. Instead, it punishes entry with the intent to tell the truth on a matter of public concern. Absent a compelling governmental interest and showing of narrow tailoring—which Kansas has not attempted to provide—the challenged subsections of the Act cannot stand,” the opinion reads.
A similar ag-gag law in Iowa was also struck down on August 10th for being overly broad.
On Jan. 22, 2020, a federal judge in Kansas ruled that some of the provisions in the 30-year old Ag-Gag law are unconstitutional.
The lawsuit was filed on December 4, 2018 in the U.S. District Court for the District of Kansas by the Animal Legal Defense Fund (ALDF), the Center for Food Safety, and Hope Sanctuary.
The ALDF is a national nonprofit that, among other things, conducts undercover investigations of animal facilities in order to expose animal mistreatment. Hope Sanctuary and the Center for Food Safety rely on the information the ALDF collects for their advocacy work.
The trio filed the suit against the Kansas governor and state attorney general on the grounds that the law violated their First Amendment right to freedom of speech because it imposed a viewpoint-based and content-based restriction on a matter of public concern.
In her ruling, U.S. District Court Judge Kathryn Vratil said that a key section of the law “plainly targets negative views about views about animal facilities and therefore discriminates based on viewpoints.”
Vratil based her ruling on a “strict scrutiny” reading of the law that says that in order for a law to survive a challenge to content-based speech regulation, “the government must prove that the regulation is narrowly tailored to serve compelling state interests.”
The state of Kansas failed to meet the burden of the law, Vratil explained, because it didn’t prevent everyone from violating the property and privacy rights of farm and slaughterhouse owners, but only prevented those who intended to harm the business operations of those facilities.
A spokesman for the attorney general’s office told the Associated Press, “We are carefully reviewing the court’s decision and will work to determine the appropriate next steps.”
U.S. News and World Report Vox
In July 2017, U.S. District Judge Robert Shelby ruled that Utah’s ag-gag law—enacted in 2012, and which criminalized lying to get into an agricultural facility and recording once inside—was unconstitutional.
The federal judge concluded that:
“Utah 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.”
NPR Desert News Utah Ag-Gag Order
In Jan. 2018, the U.S. Court of Appeals for the Ninth Circuit struck down most of an Idaho law aimed at criminalizing the making of undercover videos at agricultural facilities. The court said that audio and video recording is protected speech, and criminalizing misrepresentation used to enter an agricultural facility was overly broad, and the law’s purpose was to target investigative journalists and protected speech. The court did uphold two provisions of the law, however, saying that using misrepresentation to obtain records and employment with the intent to cause harm should be allowed to stand.
Judge M. Margaret McKeown wrote in the court’s opinion:
“We are sensitive to journalists’ constitutional right to investigate and publish exposés on the agricultural industry. Matters related to food safety and animal cruelty are of significant public importance. However, the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability. For this reason, we uphold the provisions that fall within constitutional parameters, but strike down those limitations that impinge on protected speech.”
The case stemmed from a 2012 undercover operation by Mercy for Animals at Bettencourt Dairies that exposed animal cruelty and led to criminal charges against workers. In response, industry advocates pursued the bill, SB 1337, that would make it a crime to take photos or video at a factory farm without the owner’s permission.
Capital Press Boise Weekly ALDF v. Wasden
Sept. 26, 2022: According to The Associated Press, “A federal judge has struck down the third attempt by the Iowa Legislature to stop animal-welfare groups from secretly filming livestock abuse, finding once again that the law passed last year violates free-speech rights in the U.S. Constitution. The decision Monday [Sept. 26] rejected the law approved by Iowa lawmakers in April 2021 that makes it a crime to trespass on a property to place a camera to record or transmit images. The law, which had support from Republicans and some Democrats, made the first offense punishable by up to two years in prison and subsequent offenses a felony.”
March 15, 2022: According to the Animal Legal Defense Fund, “The U.S. District Court for the Southern District of Iowa held unconstitutional Iowa’s second Ag-Gag law, also known as Iowa Ag-Gag 2.0, holding that the law criminalizing undercover investigations at factory farms, slaughterhouses, and puppy mills violates the First Amendment. The law, which is similar to the state’s first Ag-Gag statute, gagged free speech by criminalizing undercover investigations at animal facilities, deterring the exposure of animal cruelty, unsafe working conditions, and food safety threats in such facilities.”
“Ag-Gag 2.0” is currently under review at the U.S. Court of Appeals for the Eighth Circuit.
Aug. 10, 2021: A coalition of animal rights groups, including the Animal Rights League and People for the Ethical Treatment of Animals, filed a lawsuit against a number of top Iowa officials on Aug. 10 over a new law that creates added penalties for using recording equipment on private property.
Under Iowa Code § 727.8A, individuals who trespass on private property and “knowingly plac[e] a camera or electronic surveillance device…while the device is in the facility” could face up to two years in jail and up to $8,540 in fines. Prior to the law’s passage, those individuals might only have faced 30 days in jail for trespassing.
In their complaint, the animal rights groups argue that the state already has other laws that could be used to protect private property owners from invasion of privacy. Though the law does not explicitly mention animal facilities, the plaintiffs claim the lawmakers’ intention was to discourage their members from filming animal rights abuses.
They argue that this law violates the First Amendment because it is “vastly overbroad” and suppresses “a huge volume of speech without truly serving any public purpose.”
“Iowa Code § 727.8A does not just target speech and is not just poorly crafted to meet its claimed ends, it encompasses an immense number of activities that have nothing to do with protecting business information, personal privacy, or private activities of any sort,” the lawsuit states. They argue that the law could be used to punish an array of First Amendment protected speech: “reporters who access railroad tracks or public utilities and document an accident,” “people who use their phones to take a video of their discriminatory denial of access to a business,” and “workers who use a phone or camera to gather proof of unsafe conditions or managers’ derogatory comments.”
The animal rights groups are asking the United District Court for the Southern District of Iowa to declare the law unconstitutional on its face and/or applied to their advocacy efforts.
On Aug. 10, 2021, the United States Court of Appeals for the Eighth Circuit partially struck down an Iowa law that bans people from lying on an application to work at an agricultural facility.
The “agricultural production facility fraud” act is designed to deter animal rights activists who have tried to document abusive practices in animal farms. Breaking the law is punishable by up to a year in jail or a $1,875 fine.
In a 26-page opinion, the Eighth Circuit panel wrote that the law’s provision against lying on a job application violated the First Amendment, based on the Supreme Court’s ruling in United States v. Alvarez (2012).
In Alvarez, the Supreme Court found that while the First Amendment did not protect some forms of false speech, such as “defamation, fraud, or some other legally cognizable harm associated with a false statement,” the government could not ban false speech as a general category. If legislators wanted to create a law limiting false speech, they would have to make sure the law exclusively applied to lies associated with legally cognizable harm, such as fraud, securing money, or offers of employment.
In reviewing the Iowa law, the Eighth Circuit found that its ban on lying in job applications was written too broadly: it did not distinguish between lies that would be related to the job description (such as lying that you hold a Computer Science degree in an application for an IT job) and unrelated lies (such as exaggerating your exercise routine in an interview for a math teaching position).
“The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision. As such, the statute is not limited to false claims that are made ‘to effect’ an offer of employment; it allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium,” the ruling states.
The Eighth Circuit did not strike down a separate provision of the law banning “obtaining access to an agricultural production facility by false pretenses,” because it applies only to lies made in relation to trespassing.
“Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude—legally cognizable harms. We therefore conclude that the Access Provision’s prohibition on assuming false pretenses to obtain access to an agricultural production facility is consistent with the First Amendment,” the ruling states.
On June 10, 2020, Iowa Governor Kim Reynolds signed into law a new ag-gag measure that charges anyone who enters a food operation without consent with trespassing.
The law, part of a broader farm bill, increases the penalties for offenders. A first offense is now punishable by up to two years in prison, and each additional offense could bring up to five years in jail.
Legislators contend that the law is critical for protecting the food supply chain. According to Iowa Senator Ken Rozenbloom (R-Oskaloosa), “Numerous attempts by radical left-wing, anti-agriculture, coastal liberals to infiltrate agricultural operations … endanger the livelihoods of Iowa farmers, the agricultural economy and Iowa economy that depends on it.” Rozenbloom, one of the bill’s sponsors, said his family farm was targeted by activists in 2019.
Critics of the bill contend that the law is intended to stop activists from secretly documenting conditions at large farms and slaughter houses. Adam Moser, an organizer for Iowa Citizens for Community Improvement says that while the law doesn’t explicitly target undercover investigators, it’s nonetheless clear that “the factory farm industry wants an ag-gag law on the books to intimidate and silence whistleblowers.”
On Dec. 3, 2019, the United States District Court for the Southern District of Iowa issued a preliminary injunction, blocking Iowa officials from enforcing a new ag-gag law that would criminalize reporters and activists from going undercover to document the conditions at meat processing plants, livestock facilities, and puppy mills.
“Although this court seriously considers the public’s interest in seeing the enforcement of criminal laws, defendants have done little to show that (SF519) responds to ongoing issues of public concern unrelated to the suppression of free speech,” U.S. District Court Judge James Gritzner wrote. “By contrast, the public benefits from people and organizations exercising First Amendment rights and education the public about important issues relating to animal abuse and safety at agricultural production facilities.”
The newest law is the state’s second attempt to criminalize undercover reporting of agricultural facilities by activists and journalists. The first, introduced in 2012, was struck down as unconstitutional in January 2019 by Gritzner. “The law has the effect of criminalizing undercover investigations of certain agricultural facilities [such as industrial livestock farms] and those of interest to the general public, such as puppy mills,” the judge wrote.
This did not deter the state from passing more ag-gag legislation.
In March, Gov. Kim Reynolds signed into law another version of an ag-gag bill. The newer “agricultural production facility trespass” law makes it illegal for someone to deceptively gain access to a private facility with the intent to cause economic harm or other injury to the facility’s operations.
In April, the American Civil Liberties Union (ACLU) of Iowa filed a lawsuit on behalf of a coalition of public interest groups challenging the constitutionality of the state’s newest ag-gag law, arguing that it retains many of the same free speech concerns as the last one.
“The Ag Gag 2.0 law aims to silence critics of worker rights abuses, animal cruelty, unsafe food safety practices, and environmental hazards in agricultural facilities,” the ACLU of Iowa said in a press statement.
Among the groups the ACLU of Iowa is representing include the Animal Legal Defense Fund, People for the Ethical Treatment of Animals (PETA), the Center for Food Safety, Iowa Citizens for Community Improvement, and Bailing Out Benji.
In his December 2nd ruling, Gritzner also rejected the state’s motion to dismiss the lawsuit.
According to the Des Moines Register, the injunction will remain in place until a lawsuit challenging the state’s “ag-gag” law is decided.
Des Moines Register Quad-City Times Judge’s Ruling
On June 27, 2019, the Reporters Committee for Freedom of the Press, along with 22 media organizations, filed a friend-of-the-court brief supporting challenges to Iowa’s ag-gag law.
The brief says that the statute criminalizes “a number of constitutionally-protected newsgathering activities.”
Iowa’s ag-gag statute, the brief argues, has a chilling effect on the relationship between journalists and sources, because it criminalizes disclosures to the press.
“Agricultural workers who witness unsafe agricultural practices and abuse at Iowa agricultural facilities want to disclose information to the general public,” the brief explains. “At the same time, the media want to inform the public about the safety of the nation’s food supply and the potential for animal and worker abuses.”
The brief also asserts that the statute was adopted in response to undercover investigations that cast Iowa’s agricultural industry in a bad light.
Reporters Committee Amicus brief
On Feb. 21, 2019, Iowa Attorney General, Thomas J. Miller appealed the district court’s ruling that the state’s ag-gag law violated free speech protections under the First Amendment.
“The conduct prohibited by Iowa’s Ag-Fraud statute—using false pretenses to gain access to or obtain employment, with an intent to commit an unauthorized act, at an agricultural production facility—does not fall within the protections of the First Amendment,” the appeal states.
The case will be heard by the United States Court of Appeals for the Eighth Circuit.
Des Moines Register
In January 2019, Senior Judge James Gritzner of the U.S. District Court for the Southern District of Iowa ruled that the 2012 law that made it illegal to gain access to an agricultural production facility under false pretenses with the intent to record at the facility without permission was unconstitutional. The Agricultural Production Facility Fraud Act made it a “serious misdemeanor” for a person to commit agricultural production facility fraud.
Judge Gritzner wrote:
“The law has the effect of criminalizing undercover investigations of certain agricultural facilities [such as industrial livestock farms] and those of interest to the general public, such as puppy mills.”
Associated Press Little Village Iowa Order
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.’”
ALDF v. Herbert