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No End In Sight For Big Agriculture’s Push To Criminalize Activists And Whistleblowers

Agribusiness and their corporate lobbyists have convinced a number of legislatures to pass bills criminalizing activists and whistleblowers, who dare to expose animal cruelty or malfeasance. The bills known as “ag-gag” laws explicitly target citizens’ First Amendment rights. But multiple states have seen strong legal action and efforts to fight such draconian legislation.

In what is described as a “first of its kind” report, the Center for Constitutional Rights (CCR) and Defending Rights and Dissent detail the second wave of “ag-gag” laws passed from 2011 to 2017 in Arkansas, Idaho, Iowa, Missouri, North Carolina, Utah, and Wyoming.

The report also offers a concise history of the first wave of “ag-gag” laws in the 1990s and how law enforcement, corporations, and politicians promoted the idea that industry was “under siege” by “eco-terrorists” or “animal rights extremists” by the late 1980s to advocate for bills that targeted individuals’ right to dissent.

As articulated in the report [PDF], “ag-gag” laws typically prohibit “documentation of agricultural practices,” “misrepresentations in job applications” to “gain access to closed facilities,” and require “immediate reporting of illegal animal cruelty” in order to curtail “investigations documenting widespread and systematic violence.”

Arkansas signed HB 1665 into law in March. The Humane Society of the United States warned it gave employers a “civil cause of action” against any “person who knowingly gains access to a non-public area of a commercial property and engages in an act that exceeds the person’s authority to enter the non-public area.”

Commercial property included agricultural or timber production operations. “Exceeding authority” meant anyone who placed an “unattended camera or electronic surveillance device to record images or data for an unlawful purpose,” along with capturing and removing any employer data, papers, or records.

“Since the purpose of whistleblowing is to expose malfeasance, it would be highly unusual for an employer to authorize an employee to record evidence of wrongdoing or misconduct,” the Humane Society warned. “Thus, nearly any whistleblower or activist who relies on undercover video footage would be ‘exceeding their authority.'”

The Humane Society noted the “ag-gag” law could feasibly be turned against those who seek to expose the “abuse of children at a daycare center,” given how it was worded.

Arkansas lawmakers modeled their “ag-gag” law on legislation in North Carolina that passed in 2015.

The law passed in the state represented a major escalation. According to the report, it essentially dropped the “ag” from “ag-gag” because just about any corporation could use it to protect industry. The American Association of Retired Persons (AARP) was one of a number of notable organizations to oppose the bill because it posed risks for “workers, older adults, families and children” since it could apply to “nursing homes, hospitals, group homes, medical practices, charter and private schools, daycare centers,” and other similar businesses.

Although the bill was vetoed by North Carolina Governor Pat McCrory, the legislature overrode the veto and bill became law on January 1, 2016. Poultry lobbyists played a big role in ensuring the legislation was not defeated by McCrory’s veto.

Legislation that passed in Wyoming was even more stunning. Known as a “data trespass” law, it criminalized those who would collect “resource data on open land with the intent to submit that data to a federal or state regulatory agency.” For example, collecting water samples that contained E. coli bacteria could be a criminal offense if “citizen scientists” did it without proper authorization from businesses.

State senator Larry Hicks, the law’s chief sponsor, said, “This information, this data, is private information. In a lot of ways it is no different than your social security number. It has some of the same ramifications if that resides in the public domain.”

It effectively transformed the act of standing on public land to photograph a public stream into a felony if one planned to share the photograph with a government agency.

Fortunately, several challenges to corporate-backed efforts have enjoyed some success.

A district court in Wyoming found a legal challenge to the “data trespass” law “alleged plausible First Amendment and equal protection claims.” Legislators responded by amending the civil and criminal trespass laws so that “open lands” became “private lands.” They took out the part about it applying to individuals who intend to submit data to government agencies.

In August 2015, a federal judge struck down the state’s “ag-gag” law because it violated the First Amendment and rights to equal protection.

“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 abuse to the Internet and calling for boycotts,” Judge B. Lynn Winmill wrote. But, “it cannot deny such groups equal protection of the laws in their exercise of their right to free speech.”

Florida saw one of the worst “ag-gag” bills proposed. The legislature considered a bill in 2011 that “criminalized any photography or video of an agricultural facility without the owner’s consent, including images captured from public roads. The bill made such photography or videotaping a first-degree felony, a category of offenses that includes murder and rape.” It later was changed to only apply to images captured while on the property of agribusinesses, and the offense was reduced to a misdemeanor.

The bill, however, did not pass. State senator Jim Norman co-sponsored an agriculture omnibus bill with similar “ag-gag” language in 2012. He suggested undercover investigations were “almost like terrorism.” Animal activists held a lobby day against the measure. The “ag-gag” language was removed from the bill.

Animal rights activism increased in the 1980s. Around that time, the FBI labeled protests and militant actions by animal rights activists as “terrorism.” It helped create conditions for what has been referred to as the “Green Scare” to criminalize animal rights and environmental activists as terrorists, particularly with federal legislation like the Animal Enterprise Terrorism Act (AETA).

CCR previously submitted amicus briefs in support of a number of legal challenges to “ag-gag” laws.

“Big Ag has made it clear that stemming the tide of investigations, and ensuring that the public never sees the unsanitized version of animal agriculture is crucial for ensuring that consumers continue to spend their dollars on animal products,” the report concludes. “Thus, it follows that ag-gag bills are among the animal agricultural industry’s top legislative priority.”

“But the public has a right to know how food is produced, what animal agriculture entails, and if the rivers and streams they depend on are polluted. The violence consistently documented by investigators and the trampling of the First Amendment by those working to enact these laws make clear why Big Ag’s gag agenda must not be allowed to succeed.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."