Ag gag overturn leaves livestock producers vulnerable

Ag gag overturn leaves livestock producers vulnerable

State legislatures should be able to protect livestock operations from being the target of anti-agriculture groups.

Idaho’s “ag-gag” law which was signed into law in early 2014 was struck down by a district court which said it violates the first and fourteenth amendments. The decision marks the first time a court has declared this type of law unconstitutional.

The law was the seventh bill of its kind nationally, following up on recent bills passed in Iowa, Utah and Missouri. North Dakota, Montana and Kansas that adopted first generation bills during the 1990-91 legislative session. In 2013, 13 states saw similar introductions, but none were approved.

Mercy for Animals have a goal of ending animal agriculture. Pictured is a sign they used to call on consumers to boycott pork and ban laws that discourage their photographers from shooting footage on a farm without permission.

Animal right groups say these types of laws “gag” speech because journalists, workers, activists, and members of the public can be convicted for documenting animal cruelty or life-threatening safety violations.

In the court opinion, the judge stated, “The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

The court also found that the statute violates the Equal Protection Clause because it was motivated in substantial part by disposition towards animal welfare groups, and because it “impinges on free speech, a fundamental right.”

Roger McEowen, director of the Iowa State University Center for Agricultural Law and Taxation, explained Idaho’s law that was claimed to be unconstitutional criminalized "interference with agricultural production" when a person knowingly enters an ag production facility without permission or without a court order or without otherwise having the right to do so by statute (in other words, the person is on the premises illegally), and makes a video or audio recording of how the ag operation is conducted. 

The court held that the law was unconstitutional because it violates the free speech rights of those wanting to take the illegal videos on these livestock farms, and that the law was unconstitutional on equal protection grounds because it singled out persons who sought to take illegal videos. 

McEowen said the judge’s logic leaves much to be desired. The law still allowed for someone concerned to seek permission or even a warrant to get access to a farm, it just said you can’t trespass to get the same footage.

“You can boycott out front all you want, you can have a press conference, you can say whatever you want to try to convince the public of your position. You can get a judge to approve of the clandestine video, an employee who was employed not under false pretenses can shoot the video on their cell phone, but you can't obtain the video under illegal means,” McEowen said.

“How does that impinge free speech?”  he asked.

McEowen said the court overturning the Idaho law does leave the door open for similar challenges to other states that have comparable measures to protect livestock producers.  

He suspects if this case is appealed, that the 9th Circuit will affirm. McEowen fears it wouldn’t stand in the Supreme Court, but he would love to read what Justice Antonin Scalia would say about it.

In a statement from plaintiffs in the suit which included the Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), the American Civil Liberties Union (ACLU) and the Center for Food Safety (CFS), the groups said the Idaho decision “is just the first step in defeating similar ag-gag laws across the country.”

The Idaho legislature created this law in the aftermath of a video released by Mercy for Animals on mistreatment of dairy animals. Mercy for Animals is known for its agenda to end production agriculture as well as encourage vegan diets.

Even if an educational video was created about the proper way to slaughter livestock, a very high percentage of the general public would be offended because of their lack of understanding about livestock production. McEowen argues it is in the interest of states – and not a constitutional violation - to protect agribusinesses and their facilities as they are particularly susceptible to being economically ruined by people that would do them harm. State legislatures aren’t looking to protect animal abuse, but rather the degradation of a misconstrued agricultural industry that is crucial to the state’s economy.

Kay Johnson Smith, president and chief executive officer of the Animal Agricultural Alliance, said animal care is the number one priority of all farm and ranch families.

“No one in agriculture condones any sort of animal abuse,” she said. “The undercover videos produced by animal rights groups, however, are not really about stopping animal abuse. What they are about is the use of illicit, underhanded and manipulative tactics to produce videos to mislead the public into thinking their food is inhumanely produced.”

“There are a lot of differing opinions about farm protection legislation, and the decision of the federal judge regarding the Idaho law adds one more to the conversation,” Johnson Smith added. “We hope that legislators and the agricultural community will continue working to find solutions that help protect farm and ranch families from being the target of organizations focused altogether on eliminating the consumption of meat, milk and eggs.”

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