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Ag-gag laws are anti-whistleblower laws that apply within the agriculture industry. Popularized by Mark Bittman in an April 2011 New York Times column (but used long before then by advocates), the term ag-gag typically refers to state laws that forbid the act of undercover filming or photography of activity on farms without the consent of their owner—particularly targeting whistleblowers of animal rights abuses at these facilities. These laws originated in the United States, but have also begun to appear elsewhere, such as in Australia and France. Some of these laws, such as the failed proposal in Pennsylvania, have a wider scope and could be used to criminalize actions by activists in other industries.
Supporters of ag-gag laws have argued that they serve to protect the agriculture industry from the negative repercussions of exposés by whistleblowers. The proliferation of ag-gag laws has been criticized by various groups, arguing that the laws are intended primarily to censor animal rights abuses by the agriculture industry from the public, create a chilling effect in reporting these violations, and violate the right to freedom of speech. A number of U.S. ag-gag laws have been overturned as violations of the First Amendment.
Ag-gag laws emerged in the early 1990s in response to underground activists with the Animal Liberation Front movement. In Kansas, Montana and North Dakota, state legislators made it a crime to take pictures or shoot video in an animal facility without the consent of the facility's owner.
In 2002, the conservative organization American Legislative Exchange Council (ALEC) drafted the "Animal and Ecological Terrorism Act", a model law for distribution to lobbyists and state lawmakers. The model law proposed to prohibit "entering an animal or research facility to take pictures by photograph, video camera, or other means with the intent to commit criminal activities or defame the facility or its owner". It also created a "terrorist registry" for those convicted under the law.
The whistleblower advocacy project Food Integrity Campaign (FIC), a campaign of the non-profit organization the Government Accountability Project calls undercover video of livestock facilities by whistleblowers essential:
When it comes to bringing horrific truths to the public eye, undercover footage and images are often an effective outlet for whistleblowers who otherwise risk retaliation when speaking up. Going through "proper channels" to report abuse often results in supervisors intimidating those employees who have made complaints to keep quiet. Statements by Ag Gag bill sponsors imply that "real" whistleblowers have a safe and effectual means for speaking up, when history shows that's often not the case.
Ag-gag laws have also drawn criticism on constitutional grounds by eminent legal scholars such as Erwin Chemerinsky, as a violation of the First Amendment for restricting unpopular forms of speech. In August 2015, a U.S. district court ruled such a law passed by the state of Idaho to be unconstitutional as a violation of the First Amendment; Judge B. Lynn Winmill stated that "Although 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, it cannot deny such groups equal protection of the laws in their exercise of their right to free speech."
The constitutionality of Arkansas' ag-gag law is currently being challenged.
In February 2014, Idaho Governor Butch Otter signed Idaho's "ag-gag" bill, the "Agricultural Security Act", into law, which imposed fines and jail time on activists who secretly film abuse on Idaho's commercial farms. It came about as the result of the animal rights organization Mercy for Animals releasing a video of animal abuse by workers on Bettencourt Dairy farms.
On August 3, 2015, the Agricultural Security Act was struck down as unconstitutional by the U.S. District Court for the District of Idaho as a violation of the First Amendment. This decision was appealed to the Ninth Circuit, and parts of Idaho’s law were struck down on First Amendment grounds in early 2018.
The constitutionality of Kansas' ag-gag law is currently being challenged.
The constitutionality of North Carolina's ag-gag law is currently being challenged.
In February 2015, Western Australia Senator Chris Back introduced Criminal Code Amendment (Animal Protection) Bill 2015 to the Australian Senate which would add a new section creating an offense if a person created a "record" of animal abuse and then failed to hand it in within 5 days to authorities.
Proponents of the laws note that public documentation of factory farming practices will result in negative consequences for the industry. "State Sen. David Hinkins (R), who sponsored Utah's law, said it was aimed at the 'vegetarian people who are trying to kill the animal industry.'"  When investigators publicize documentation of factory farms, the company generally loses business. For instance, in 2007, an undercover investigator from The Humane Society of the United States visited the Hallmark/Westland slaughterhouse in Chino, California and filmed downed cows, too sick to stand up, being "dragged by chains and pushed by forklifts to the kill floor". A large amount of the meat from this slaughterhouse had been consumed through the National School Lunch Program, and the footage compelled "the U.S. Department of Agriculture to announce what was at the time the largest meat recall in U.S. history". Similarly, a Mercy for Animals investigation at Sparboe Farms resulted in McDonald's, Target, Sam's Club, and Supervalu all dropping Sparboe as an egg supplier. The investigation revealed cages full of dead hens rotting alongside living hens who were still laying eggs for human consumption. The investigator documented standard practices such as painful debeaking without painkillers and tossing live birds into plastic bags to suffocate, along with other behaviour deemed "sadistic" and "malicious".
Fifty-nine groups, including a wide variety of welfare, civil liberties, environmental, food safety and First Amendment organizations have publicly stated opposition to ag-gag laws. Some of these groups include the American Civil Liberties Union (ACLU), Animal Legal Defense Fund (ALDF), American Society for the Prevention of Cruelty to Animals (ASPCA), Amnesty International USA, Farm Sanctuary, Food and Water Watch, Food Chain Workers Alliance, Humane Society Veterinary Medical Association, International Labor Rights Forum, National Consumers League, and United Farm Workers, among many others. The statement of opposition explains:
These bills represent a wholesale assault on many fundamental values shared by all people across the United States. Not only would these bills perpetuate animal abuse on industrial farms, they would also threaten workers' rights, consumer health and safety, law enforcement investigations and the freedom of journalists, employees and the public at large to share information about something as fundamental as our food supply.
Individuals and groups such as the ones listed above are concerned that the bills are written to hide welfare and safety violations in the animal agriculture industry from the public view. While laws aimed at restricting documentation or employee applications directly restrict documentation, the third type of law (e.g. Missouri's) is said to be intended to promote the rapid prosecution of any business displaying such practices. However, critics of the bills contend that when all material must be turned over to authorities in such a short amount of time (generally within twenty-four hours), establishments can easily cover up or change their practices or fire the employee before further documentation can occur, making a thorough investigation of any farm virtually impossible.
On July 22, 2013, the ALDF, PETA (People for the Ethical Treatment of Animals) and others filed their first lawsuit challenging ag-gag laws on constitutional grounds, in Utah. Utah's law made it illegal to obtain access to an agricultural operation under false pretenses, such as providing inaccurate information on a job application, which is one of the ways that investigative reporters document violations and abuses.
Since then, the ag-gag laws of Utah and three other states have been found unconstitutional. In August 2015, Idaho's ag-gag law was declared unconstitutional by the U.S. District Court for Idaho, and the decision was upheld on appeal. Federal district courts overturned Utah's law July 2017, and Iowa's in January 2019, and initially upheld the law in Wyoming, but overturned Wyoming's law in October 2018 following remand from the Tenth Circuit.
Legal challenges to ag-gag laws are ongoing in other states, including North Carolina and Kansas. The suit in North Carolina was dismissed by the district court, but the Court of Appeals for the Fourth Circuit reversed and remanded the decision.
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- Jacob Chamberlain, Fracking Activists Could Face Felony Charges as "Ag-Gag" Laws Spread, Common Dreams, May 9, 2013.
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