Ag-Gag Legislation: Fastening the Muzzle on Whistleblowers

By: Samantha Snyder

Downed dairy cows – ones too sick or injured to stand or walk – lie lifeless on the ground.[1] Workers violently kick, jab, shock, and torture these cows with a hose and water, all in an effort to try to force the feeble animals to stand and walk to slaughter.[2] This depiction of unjust abuse is not fiction but an unfortunate reality, knowledge which was attained through video footage after a lengthy undercover investigation conducted by the Humane Society of the United States.[3] The uncovering of these acts led to one of the largest beef recalls in the United States, and resulted in two employees being charged with animal cruelty and California enacting a new statute prohibiting slaughterhouses from receiving or holding downer animals.[4]

This is but one example of the good that comes from undercover investigations, something purported ag-gag[5] legislation hopes to put an end to.[6] Not only can these investigations reveal unethical and harsh treatment of animals and serious food safety issues but also may reveal additional concerns involving the agricultural industry, such as labor and environmental violations.[7] Because these investigations can shed light on serious issues that span such diverse areas of focus, “a coalition of more than 70 national groups opposes ag-gag legislation.”[8]

While ag-gag legislation comes in many shapes and sizes, the commonality is the fact that “they threaten not only to cover up horrific animal abuse and food safety problems, but also other illegal or unethical behavior . . . .”[9] This common goal is reached through varying degrees of prohibited conduct, such as preventing lying on job applications in order to obtain access to the facility, recording or photographing at the facility, and publicizing or circulating said pictures or videos.[10]

In regard to workers’ rights and labor issues, not only do these undercover investigations have the ability to expose unsafe working conditions or worker abuse, ag-gag legislation attempts “to criminalize the recording of sounds or images in animal facilities, no matter the content.”[11] And what is the price for an employee engaging in these prohibited activities? Hefty fines or even jail time. Some laws go even further and allow the employer to sue the whistleblower directly for any reputational damage resulting from information gained during an undercover investigation.[12] Workers in the agricultural industry often “work in dirty, difficult and sometimes dangerous conditions . . .” in addition to receiving “no holiday pay, no overtime, no sick pay and no workers’ [compensation].”[13] Without the ability to engage in undercover investigations, or the photographing or recording of work conditions, these labor violations may never surface.

While twenty six states have introduced some form of ag-gag legislation, they have only been passed in eight states, some of which have been scrutinized by courts.[14] Idaho’s law, which was implemented in 2014, was found unconstitutional under the First Amendment by a federal district court.[15] Even given this negative outcome for ag-gag legislation, states are still continuing to introduce and pass forms of this legislation.[16] For example, on March 23, 2017, Arkansas Governor Asa Hutchinson signed an ag-gag bill into law “despite an outcry from the citizens of Arkansas and Americans at large.”[17]

Public outcry has been and likely will continue to increase given a new tendency to no longer be restricted to the agricultural industry. More and more of the laws being introduced and passed are placing bans on “undercover investigations of virtually all private entities,”[18] including restaurants, hospitals, elder care facilities, veteran care facilities, day care centers, and even schools.[19] It certainly will be interesting to see what new organizations or interest groups join the fight against ag-gag legislation and if more of these laws will be found unconstitutional. For now, though, it appears state legislatures’ are not only fastening the muzzle on individuals in the agricultural industry but are attempting to pursue a “less you know, the better”[20] mantra in all private industries.

[1] Rampant Animal Cruelty at California Slaughter Plant, The Humane Soc’y of the U.S. (Jan. 30, 2008), http://www.humanesociety.org/news/news/2008/01/undercover_investigation_013008.html.

[2] Id.

[3] Id.

[4] Id.

[5] These types of laws are called “ag-gag laws” because the “ag”ricultural industry is “gagging” this form of speech. Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[6] “[T]he use of exposés to reveal abuse” can be traced back to Upton Sinclair’s book, The Jungle, which revealed the “atrocious conditions inside America’s meatpacking plants and led directly to the passage of the federal Meat Inspection Act, the Pure Food and Drug Act, and the eventual formation of the federal Food and Drug Administration (“FDA”).” What Is Ag-Gag Legislation?, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Apr. 3, 2017).

[7] Id.

[8] Id.

[9] Id.

[10] Kevin C. Adam, Shooting the Messenger: A Common-Sense Analysis of State “Ag-Gag” Legislation Under the First Amendment, 45 Suffolk U. L. Rev. 1129, 1131 (2012).

[11] Id.

[12] Animal Legal Defense Fund v. Otter, No. 1:14-104, 2015, at *2 (D. Idaho Aug. 3, 2015).

[13] Joseph Sorrentino, The One Thing Worse Than Big Dairy’s Abuse of Cows? Its Abuse of Workers, In These Times (Dec. 1, 2014), http://inthesetimes.com/article/17348/big_dairy_work_an_udderly_bad_job.

[14] Ag-Gag Legislation by State, The American Soc’y for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-protection/public-policy/ag-gag-legislation-state (last visited Apr. 3, 2017).

[15] Id.

[16] Animal Legal Defense Fund Statement on Arkansas’ New Unconstitutional Ag-Gag Law, Animal Legal Def. Fund (Mar. 24, 2017), http://aldf.org/press-room/press-releases/animal-legal-defense-fund-statement-on-arkansas-new-unconstitutional-ag-gag-law/.

[17] Id.

[18] Id.

[19] Id; Taking Ag-Gag to Court, Animal Legal Def. Fund, http://aldf.org/cases-campaigns/features/taking-ag-gag-to-court/ (last visited Apr. 3, 2017).

[20] Dayton Martindale, Ag-Gag Laws: The Less You Know The Better, In The Times (June 19, 2015, 10:31 AM), http://inthesetimes.com/rural-america/entry/18071/ag-gag-laws-what-you-dont-know-might-hurt-you.

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