In 2011, an undercover investigation at an Iowa Select Farms found employees smashing piglets onto the concrete floor. Another undercover investigation that year at an Iowa Hormel Foods supplier documented employees “beating pigs with metal rods” and “sticking clothespins into pigs’ eyes and faces.” Those investigations of illegal practices on factory farms were conducted by animal rights groups, which documented what they saw on video.
In 2012, the Iowa legislature passed a law banning the collection of evidence of crimes like those. And Iowa isn’t alone. Several states have passed — and many others have considered — so-called “ag gag” laws, which criminalize the undercover investigations that reveal abuses on farms. Legislators have been forthright about their motives too. They’re worried that evidence of what goes on on these farms will outrage Americans — so they want to ban it.
The question: Are these laws constitutional? On Wednesday, the federal court for the Southern District of Iowa said no. It was the third ruling against ag-gag laws in the past few years. Yet similar laws in other states are still in place, as challenges to them slowly make their way through the courts.
Ag-gag laws are a recent trend, and it will be good news if the remaining ones lose in court as Iowa’s did. They usually work by directly targeting only “deception” — the undercover investigators who get the footage of the farms get themselves hired through deceptive means, so the argument goes — but the laws’ intent is often openly to suppress real, accurate pictures and videos depicting how our food is produced. These laws were lobbied for by an industry that fears it cannot survive if information about how it operates becomes public.
As my colleague Ezra Klein put it:
We should be allowed to see how our food is made. We should be able to bear seeing how our food is made.
If the conditions in which we raise animals for slaughter are so awful they can’t be seen, then they should be reformed, not hidden by the force of the state.
— Ezra Klein (@ezraklein) January 4, 2019
The ag-gag law landscape
How do you stop undercover investigations of farms? States have tried varying strategies.
A common one is to rely on the fact that undercover investigators will have to engage in “deception” to get a job on the factory farm. Alabama, for example, prohibits “possession of records obtained by theft or deception” from an animal or crop facility. That means it’s not just a crime to get a job as a slaughterhouse worker while promising you’re not an animal activist — it would also be a crime to possess or distribute the evidence they collect.
Until Wednesday, when the law was struck down, Iowa criminalized “providing false information on an employment application with the intent to record images.”
Other states just prohibit taking pictures at work if you work on a farm: Kansas criminalizes “enter(ing) an animal facility to take pictures by photograph, video camera or by any other means.”
North Carolina criminalizes gaining access to your “employer’s property for the purpose of making secret recordings.” The only law that’s not specific to agriculture, it has also been opposed by veterans groups, which rely on undercover investigations of hospitals and nursing homes to expose inhumane conditions.
Other states have attempted what are known as “quick-reporting bills.” Quick-reporting bills sound, on their surface, animal-friendly: They make it a crime to possess footage of animal abuse and not turn it over to the authorities immediately, within 24 or sometimes 48 hours.
This sounds good but tends to make undercover investigations impossible. Almost any awful thing can happen once on a farm — one pig in an illegal cage, or dead of violent injuries, or kicked by a staffer, isn’t proof of large-scale systemic abuse. Animal activists don’t want to just put forward one scary image that can be blamed on a scapegoat slaughterhouse worker — they need to demonstrate that the abuses are endemic, ignored, and even encouraged. Proof of large-scale abuse takes time to gather.
That means that in practice, no misconduct can ever be proven on only the first day of investigating. “Say you have a DEA agent who spends months undercover to infiltrate a drug cartel,” Chris Green, the executive director of Harvard Law School’s Animal Law & Policy Program, told me. “This is like requiring them to reveal themselves the first time they see a $5 drug buy.” You’ll never get to the heart of the abuses that way — which, of course, may be exactly what the industry, which backs quick-reporting, wants.
Animal activist groups have filed suit against several states with ag-gag laws. So far, they’ve been winning — a successful court challenge overturned Idaho’s ag-gag law in 2015, and the US District Court of Utah overturned Utah’s in 2017. This week’s ruling by the US District Court for the Southern District of Iowa is another win.
“The American public has the right to know about terrible conditions on factory farms,” Matthew Strugar, the lead attorney in the Iowa case, told me. “These laws are big business trying to prevent the American people from knowing what goes into their food.”
What ag-gag is trying to hide
One of the horrifying stories that instigated Iowa’s ag-gag law was the investigation of Sparboe Farms in 2011. An undercover investigator, working for Sparboe on a traveling crew that visited eight facilities in three states, got footage of workers burning the beaks off baby chicks, throwing chickens by the neck, and leaving dead chickens to rot in cages they shared with live birds.
The footage aired on Good Morning America, 20/20, and World News Tonight With Diane Sawyer. Almost a million people watched the footage on YouTube. People were infuriated and horrified. McDonald’s, Target, and other major egg purchasers cut ties with Sparboe Farms.
But it wasn’t just Sparboe Farms. Other investigations — in Iowa and all over the country — have turned up similar atrocities elsewhere.
This video by the Humane Society of the United States was captured in Iowa in 2010, and depicts abuses at Rose Acre Farms and Rembrandt Enterprises. It would have been illegal to film after 2012, when the state’s ag-gag law was enacted. The investigation found cages with weeks-old decomposed hen carcasses, live hens with severe infections and abscesses, and hens suffering uterine prolapses (a consequence of the strain of laying far too many eggs), including a hen whose internal organs became caught in the floor of the cage.
Importantly, these are not the result of a few maliciously cruel slaughterhouse workers. These things occur routinely on factory farms — they’re systemic problems, not one-off individual ones.
Ag-gag laws successfully keep atrocities on farms hidden
Ag-gag laws are rarely actually used to prosecute activists. But they’ve nonetheless succeeded at their mission of squelching dissent. The organizations that arrange undercover investigations mostly avoid putting themselves at legal risk, Josh Balk, vice president of farm animal protection at the Humane Society, told me. “Most organizations will not go into a state to actively break a law,” which means that ag-gag laws are effective at shielding farms from scrutiny.
One person has been arrested under an ag-gag law so far: Amy Meyer of Utah, who stood in a public thoroughfare filming the treatment of cows in a slaughterhouse visible from the road. Utah’s law shouldn’t have applied to her, as it only prohibited recordings that were made while an investigator was there on “false pretenses.” Charges were quickly dropped once the case attracted national outrage. Nonetheless, the whole episode put the lie to the insistence of ag-gag proponents that the laws would only be used to charge people for extreme and outrageous behavior.
Animal advocates have responded with caution. “None of the major animal protection groups have done anything in Iowa in the last seven years,” Harvard’s Chris Green told me. The ag-gag laws have worked.
The free speech question
The first question many people ask when they learn of ag-gag laws is how are laws like this constitutional?
The House sponsor of Iowa’s ag-gag bill said she’d pushed the bill “to crack down on activists who deliberately cast agricultural operations in a negative light.” The bill’s sponsor in the Senate said the intent was to stop “extremist vegans” committing “subversive acts” that might “bring down the industry.”
But don’t we have a constitutional right to “cast agricultural operations in a negative light”? Doesn’t free speech apply even to “extremist vegans”?
The federal court for the Southern District of Iowa is now the third court to answer that, yes, ag-gag laws are unconstitutional.
Here’s the argument: When considering whether a law violates First Amendment protections on speech, a court does three things. First, it decides whether the statute restricts protected speech. If the statute does restrict protected speech, the court determines what level of scrutiny applies. Some laws that restrict speech are subject to strict scrutiny, which means that for the law to be ruled constitutional, the state must prove the law is “narrowly tailored to serve a compelling state interest.”
Other laws that regulate speech are subject only to intermediate scrutiny, which means that for the law to be ruled constitutional, the state must prove that the law advances an “important government interest by means that are substantially related to that interest.”
Once the court has picked the appropriate standard to use, it will rule on whether the law meets that standard. The federal court in the Iowa case found (“as have other courts considering similar statutes,” the court noted) that it was ambiguous whether to apply strict or intermediate scrutiny to Iowa’s ag-gag law, but it didn’t matter, because the law failed by either standard. Iowa argued that the law advanced important government interests in biosecurity (since diseases can be transmitted by unauthorized trespass on factory farms) and in protecting private property.
The court was unimpressed on both counts. “If the concern is biosecurity, how does prohibiting lying on an employment application or taking a picture help?” Strugar, the lead attorney, asked me.
The court had pretty much the same question. “Defendants have made no record as to how biosecurity is threatened by a person making a false statement to get access to, or employment in, an agricultural production facility,” it wrote, concluding that there couldn’t be a compelling state interest in biosecurity here.
The state does have a compelling interest in protecting private property against trespass. The problem is Iowa already has trespassing laws and the ag-gag laws don’t address trespassing very well — and you can’t use a restriction on speech to advance a state’s interests if there’s a perfectly good way to achieve the same results without restricting speech.
Iowa’s law was a little narrower in scope than Idaho’s and Utah’s. Idaho and Utah both criminalized both “deception” and recording farms, while Iowa restrained itself to criminalizing “deception.” That, the court found, was not enough to make Iowa’s law constitutional.
Could an ag-gag law ever be constitutional? It seems likely that agriculture corporations and state legislatures will keep trying, but they’d need to establish at an absolute minimum that the speech restrictions passed intermediate scrutiny — which courts have concluded they really don’t. Litigation is in progress on ag-gag laws in Kansas and North Carolina.
As the courts have started to rule on ag-gag laws, state legislatures have lost some of their enthusiasm for them. More than 40 ag-gag laws have been proposed in 24 states. But since 2016, only two have been introduced. “In 2018 there was not a single ag-gag bill introduced, which I think is pretty telling,” Green told me. States are watching the courts — and learning that these laws probably won’t fly.
Our nightmarish food system
Ultimately, though, ag-gag laws aren’t the real problem — they’re a symptom of it. The problem is that what goes on on our farms is so horrifying, and so unconscionable to the typical American consumer, that agribusinesses have turned to trying to hide it.
“The situation agribusiness faced was this,” Balk told me. “They tried for many years” to defend the treatment of animals in industrial farming — blaming systemic abuses on individual bad workers, claiming that their practices were good for animals. “They lost every time. They lost ballot measures, they lost their customers — fast-food chains and major grocery stores.”
That’s why there was a sudden surge of interest in banning undercover investigations of factory farms. Ag-gag laws, in other words, came about because agribusiness concluded the horrors of our food system couldn’t stand up to the light of day.
People want affordable meat. They don’t want animals treated cruelly. Right now, the industry is trying to provide the meat and hide the cruelty. But we can do better. It’s fair to expect a food system that doesn’t have to hide its conduct from its customers — and fair to be very concerned that our current food system considered ag-gag laws a better solution.
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