The First Amendment Down on the Farm: the “Ag-Gag” Controversy

By Leah Ference and Alyssa Luchette

The name “ag-gag” is, in and of itself, indicative of what seems to be popular opinion on the issue of the bills that seek to police the act of recording on farms across the country. The term, coined by Mark Bittman in a 2011 article for the New York Times,[1] refers to laws which seek to protect the Agricultural industry (“big Ag”) by “gagging” journalists and other whistleblowers who would otherwise seek to report the conditions that animals are subjected to while living on farms.

Essentially, the laws, which claim to work to “protect family-owned and corporate farms,”[2] prevent citizens from taking pictures, video, or audio recordings on farms across the country, as well as from lying on job applications to work on farms “undercover” for the purposes of obtaining this information. In the past, journalists and other whistleblowers have released videos and documentaries featuring footage taken from farms, often depicting cruel and/or illegal conditions for animals. Animal rights activists release the footage in order to raise awareness, and this kind of reporting and dissemination of information has proven essential for that purpose.

In his book Eating Animals, Jonathan Saffran Foer outlines the difficulties he had trying to get even basic information out of the farm facilities, including seven unsuccessful attempts to obtain legal access, or even information, from Tyson Foods.[3] With these kinds of roadblocks in the way for the press, they are left with no options other than to go undercover. Beyond that, the ag-gag laws punish the general collection of information, not just undercover operations. The first person arrested under an ag-gag statute, Amy Meyer, was on public property in Utah when she decided to film the operations at Dale Smith Meatpacking Company in February 2013 [4]. So while other meatpacking operations have successfully sued undercover journalists for trespassing, this woman was on the public street, so there is no property issue present, and she was therefore arrested for generally collecting information.

A sponsor of HB683, an ag-gag bill that was introduced in Pennsylvania in early 2013, claims that “there has to be a certain degree of privacy when you own a farm,”[5] but his view, as illustrated by the nickname of the bills, seems to be the minority. The PA bill failed, and the ASPCA website lists only seven states which currently have ag-gag laws in effect.[6]

Arguably, the main First Amendment issue at hand concerning ag-gag laws is that making it a felony to videotape farms is a violation of the right to freedom of the press. Yale Law student Lewis Bollard’s award-winning essay argues that because ag-gag laws “significantly restrict the flow of information in the public domain,”[7] they disrupt the core values of freedom of speech. The public cannot discover the truth of the matter if the press is not allowed to report on it, and the ag-gag laws prohibit promotion of stable change by hiding the slaughterhouse policies that the public would not agree with.

Bollard argues that strict scrutiny should be applied to those laws since they are aimed directly at suppressing speech, the First Amendment being one of the most important rights guaranteed under the U.S. Constitution. Citing the Supreme Court’s decision in a 1993 case regarding religious animal sacrifice, he concludes that ag-gag laws are “underinclusive for any goal other than penalizing undercover investigators,”[8]because they specifically target reporting on farm operations, and do not expand their restrictions to other aspects of or participants in the process. His argument is that the laws are too narrowly tailored, instead of targeting the general act of trespassing on the farm’s private property; ag-gag laws specifically target the press’s ability to report on the day-to-day operations of the facility, and therefore specifically prohibit expressive speech. Natasha Khan explains that because they are specifically targeted at “whistleblowers,” these bills “create a chilling effect on what the public learns about animal cruelty;”[9] which also unconstitutionally limits freedom of the press.

Because of the widespread media disdain for these laws and the relatively low success rate at passing them, the chances that they will become commonplace in states across the country are arguably quite low. Animal rights groups such as the ASPCA routinely post updates on which states currently have legislation that has been introduced, and ask that their supporters campaign against the bills being signed into law.[10] Often, even states which do manage to pass ag-gag type laws only succeed in prohibiting whistleblowers from lying on applications in order to gain entry into farms for the purposes of filming illegal or unethical activity.[11] It is therefore likely that most attempts to pass laws that criminalize reporting of these activities will ultimately fail.

Sources:

Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

“Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

“Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014.https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014.http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[1] Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

[2] Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

[3] Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

[4] “Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

[5] Khan, Natasha.

[6] “Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014. https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

[7] Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014. http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[8] Bollard, Lewis.

[9] Kahn, Natasha.

[10] ASPCA article, see citation #4.

[11] ASPCA article.

FBI Gag Orders Ruled Unconstitutional

By TJ Creedon

The Ninth Circuit Court of Appeals ruled in March that the gag orders, which accompany the FBI’s national security letters, are unconstitutionally violating people’s rights to free speech. The case brought to court was from an “unnamed telecommunications company” after it received a letter requesting subscriber information. The letter also stated that alerting those subscribers would be a national threat.

The Electric Frontier Foundation, in May 2011, brought the lawsuit against the National Security Letter statutes–18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511. The “Counterintelligence access to telephone toll and transactional records” statutes state that the FBI may subpoena telecommunication records.

U.S. District Judge Susan Illston on March 19, 2013, in Northern California, granted the EFF’s request and ruled that the gag orders violate both the First and the Fourth Amendments.

According to the EFF:

“The court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional” (“National Security Letters Are Unconstitutional, Federal Judge Rules,” Electronic Frontier Foundation).

The judge ordered the FBI to stop issuing the letters and stop enforcing the gag orders, because the provisions do not overcome the presumption against prior restraint.

The ALCU and the NYLCU argued that the National Security Letters and the accompanying gag orders violated the First, Fourth and Fifth Amendments “by allowing the FBI to obtain private information without any form of judicial review. The plaintiffs further argued that Section 2709’s non-disclosure provision is an unlimited suppression of free speech that indefinitely burdens First Amendment rights,” according to the NYCLU.

2011 brought about a partial lift of the FBI’s gag order on the case, which allowed Nicholas Merrill, of Calyx Internet Access, to reveal himself as ALCU’s main client in this case.

The original National Security Letter statute was passed in 1986, and according to EFF, “the FBI has issued hundreds of thousands of such letters seeking the private telecommunications and financial records of Americans without any prior approval from courts.”

In 2004, a similar case was brought to court by the American Civil Liberties Union on behalf of another unnamed telecommunication company against John Ashcroft, as the Attorney General (American Civil Liberties Union v. Ashcroft, 2004). The judge in this case, Victor Marrero of the United States District Court for the Southern District of New York, struck own the National Security Letters section of the Patriot Act.

The rulings in these cases come for many people as a victory for freedom, or at least a step in the right direction.

Sources:

“National Security Letters Are Unconstitutional, Federal Judge Rules”

https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-federal-judge-rules

“18 USC § 2709 – Counterintelligence access to telephone toll and transactional records”

http://www.law.cornell.edu/uscode/text/18/2709

“Doe v. Holder (Challenging Patriot Act’s National Security Letter provision and associated gag provision)”

http://www.nyclu.org/node/37

“ACLU & Doe v. Ashcroft – the Good Bits”

https://www.eff.org/deeplinks/2004/10/aclu-doe-v-ashcroft-good-bits