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Monday, 18 September 2017 07:44

"Ag-Gag" Bills Criminalizing Whistleblowers Dealt Setbacks in Utah and Wyoming

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BILL BERKOWITZ FOR BUZZFLASH AT TRUTHOUT

Meat 0918wrp opt(Photo: Shawn Harquail)In the early 1990s, legislation specifically aiming at gagging whistleblowers was introduced in several states. These "ag-gag" laws, initiated by the agricultural-industrial complex, targeted journalists, environmental and animal rights activists, preventing them from taking photographs or video at slaughterhouses and other agricultural operations. As Esquire's Charles P. Pierce recently pointed out, these laws were aimed at "criminaliz[ing] the gathering of evidence regarding environmental pollution on public lands, as well as evidence regarding unsanitary conditions in facilities like slaughterhouses and factory farms."

According to The Humane Society of the United States, "Ag-gag bills seek to make it difficult or impossible for whistleblowing employees or animal advocacy groups to expose animal cruelty or safety issues. These bills can take a variety of forms, but the intent is the same: to punish those who expose patterns of animal abuse or food safety violations on factory farms, and therefore conceal these abuses from the public." 

Recently, ag-gag laws in Utah and Wyoming were ruled unconstitutional. In July, the U.S. District Court of Utah struck down the law on the grounds that it is unconstitutional. 

In Wyoming, the 10th Circuit Court of Appeals, found that the "plaintiffs' collection of resource data constitutes the protected creation of speech." The case pitted WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCE DEFENSE COUNCIL, and PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS INC; CENTER FOR FOOD SAFETY, v. PETER K. MICHAEL, in his official capacity as Attorney General of Wyoming; TODD PARFITT, in his official capacity as Director of the Wyoming Department of Environmental Quality; PATRICK JON LEBRUN, Esq., in his official capacity as County Attorney of Fremont County, Wyoming; JOSHUA SMITH, in his official capacity as County Attorney of Lincoln County, Wyoming; CLAY KAINER, in his official capacity as County and Prosecuting Attorney of Sublette County, Wyoming, and CENTER FOR AGRICULTURE AND FOOD SYSTEMS; FIRST AMENDMENT LEGAL SCHOLARS. The court pointed out that "Wyoming has adopted expansive definitions of 'resource data' and 'collect.' The former covers any 'data relating to land or land use,' including information about 'air, water, soil, conservation, habitat, vegetation or animal species.' §§ 6-3- 414(e)(iv); 40-27-101(h)(iii). The latter applies when individuals 'take a sample of material' or 'acquire, gather, photograph or otherwise preserve information in any form' if those individuals also record the 'legal description or geographical coordinates of the location of the collection.' §§ 6-3-414(e)(i); 40-27-101(h)(i). Accordingly, prohibited acts include the following activities on public land, so long as an individual also records where such data was gathered: collecting water samples, taking handwritten notes about habitat conditions, making an audio recording of one's observation of vegetation, or photographing animals.

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The court went on: "The Supreme Court has explained that 'the creation and dissemination of information are speech within the meaning of the First Amendment.' Sorrell, 564 U.S. at 570. 'Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to 12 conduct human affairs.' Id. If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by 'simply proceed[ing] upstream and dam[ming] the source' of speech."

According to agri-pulse.com, "The Wyoming Farm Bureau was disappointed with the decision. Brett Moline, WFB's director of public and governmental affairs, said the court had 'elevated free speech' to a position 'higher than property rights.'"

As National Review's Paul Shapiro wrote in April 2015, "In recent years, whistleblowing exposés have repeatedly documented inhumane treatment of animals and the food-safety problems inside the farms and slaughter plants that produce nearly all of our nation's meat, eggs, and dairy products."

Various states have come up with what Shapiro, the Vice President of Policy for the Humane Society of the United States, characterized as "whistleblower-suppression" bills, which "requires anyone documenting inhumane treatment of farm animals to 'out' himself, usually to the Department of Agriculture or the police, nearly immediately and turn over all his evidence before any pattern of abuse can be established."

Draconian ag-gag laws are aimed at stifling any reporting on animal abuse, environmental offenses, toxic waste runoff from corporate farms, food safety violations, and unsafe workplaces.

Originally aimed at punishing anyone who videotaped cruelty, they were expanded to include prosecuting anyone misrepresenting themselves on job applications; stifling any journalistic undercover investigations.

The website of The American Society for the Prevention of Cruelty to Animals provides a state-by-state ag-gag scorecard:

Arizona – Introduced H.B. 2587 in 2014. Failed. 

Arkansas – Introduced legislation in 2013. Failed. Passed an ag-gag law in 2017.

California – Introduced legislation in 2013. Failed. 

Colorado – Introduced S. 42  in 2015 to require reporting of cruelty within 48 hours. This "quick-reporting" bill would prevent the collection of adequate evidence to show patterns of abuse, neglect or abandonment, potentially hindering prosecution of abusers. Bill tabled in February by its sponsor. 

Florida – Introduced legislation in 2012. Failed. 

Idaho – Passed an ag-gag law in 2014, which in August 2015 was struck down by a federal court as being unconstitutional. 

Illinois – Introduced legislation in 2012. Failed. 

Indiana – Introduced legislation in 2012, 2013 and 2014. Bills failed in 2012 and 2013. Introduced S.B.101 in 2014 which was later stripped of ag-gag-type provisions. 

Iowa – Passed an ag-gag law in March 2012 that criminalizes providing false information on an employment application with the intent to record images. 

Kansas – Passed the Farm Animal and Field Crop and Research Facilities Protection Act in 1990. It criminalizes "enter(ing) an animal facility to take pictures by photograph, video camera or by any other means" with the intent of causing harm to the enterprise. 

Kentucky – Added an ag-gag provision to a pro-animal bill in 2014. Bill died. 

Minnesota – Introduced legislation in 2011 and 2012. Failed. 

Missouri – Passed an ag-gag law in July 2012. Mandates that evidence of animal abuse must be turned over to law enforcement within 24 hours, preventing the collection of adequate evidence to show patterns of abuse, neglect or abandonment, and potentially hindering prosecution of abusers. 

Montana – Passed an ag-gag law in 1991. It criminalizes "entering an animal facility with the intent to commit a prohibited act, entering an animal facility to take pictures by photograph, video camera, or other means with the intent to commit criminal defamation, and entering an animal facility if the person knows entry is forbidden." Introduced a quick-reporting bill in 2015 providing that "a person who knowingly fails to report evidence of cruelty to animals at an animal facility within 24 hours commits the offense of cruelty to animals." The ASPCA opposes quick-reporting bills. Bill died.  

Nebraska – Introduced legislation in 2012 and 2013. Failed. 

New Hampshire – Introduced legislation in 2013. Failed. Reintroduced H.B. 110 in 2014. Bill died. 

New Mexico – Introduced legislation in 2013, which failed. Introduced a quick-reporting bill in 2015 to make failure to turn over evidence of animal abuse within 24 hours of collection a misdemeanor.

New York – Introduced legislation in 2011 and 2012. Failed. 

North Carolina – In 2015, ag-gag bill H.B. 405 was vetoed by Governor McCrory, but the NC House and Senate overturned the veto. This law went into effect on January 1, 2016. The law prohibits anyone from gaining access to the non-public area of their employer's property for the purpose of making secret recordings or removing data or other material. The law will create a civil cause of action, allowing a business to sue for damages. NC also introduced ag-gag bills that were defeated in 2013 and 2014.  

North Dakota – Passed the Animal Research Facility Damage Act, which makes it a class B misdemeanor to "[enter] an animal facility and using or attempting to use a camera, video recorder, or any other video or audio recording equipment." 

Pennsylvania – Introduced legislation in 2013. Failed. 

Tennessee – Introduced legislation in 2013, which was passed by Legislature but vetoed by Governor. Introduced legislation again in 2014, which failed. H.B. 1838, introduced in January 2016, prohibiting anyone from gaining access to the non-public area of their employer's property for the purpose of making secret recordings or removing data or other material. Failed.

Utah – Passed an ag-gag law in March 2012 criminalizing numerous actions related to accessing and recording agricultural operations. In July 2017, the U.S. District Court of Utah struck down the law on the grounds that it is unconstitutional. 

Vermont – Introduced legislation in 2013. Failed. 

Washington – Introduced legislation in 2015 to create the crime of "interference with agriculture production" and classifies it as a gross misdemeanor with maximum penalties of one year in jail, a $5,000 fine, or both. 

Wyoming – Introduced legislation in 2013, which failed. Introduced S,F. 12 in 2015 to criminalize collection of "resource data" (including photos and video) on private land and prohibit it from being used as evidence in criminal trials. Governor Mead signed S.F. 12 into law in March. A 2016 revision to this law seems to indicate that it is not targeting animal cruelty investigations.

In addition to being an attack on the publics right to know, ag-gag laws are ultimately attacks on consumers. As the Animal Legal Defense Fund pointed out on its website, "Undercover investigations have revealed severe animal abuse on factory farms—animals beaten, kicked, maimed, and thrown. Investigations have also brought to light ammonia and pink slime in hamburgers, antibiotic-resistant 'superbugs,' chickens abandoned by the thousands to starve to death, pregnant and nursing pigs held in gestation crates too small for them to stand or turn around, and sick and downed cows dragged on the ground before they become lunchmeat."