Originally published in the Delmarva Farmer Sept. 22nd edition.
The agriculture community calls them farm protection laws. Animal activists refer to them as “ag gag” laws. No matter what you call them, they are at the forefront of media headlines and courtrooms. Farm protection policy is playing a huge role in the agriculture industry, making a strong comeback in popularity since the early 1990’s. What are these laws? Most recently, farm protection laws generally criminalize the undercover investigation of agricultural operations, no matter the intent of the individual. Some states’ laws require that the individual have the intent to damage the business, while other farm protection laws do not.
The current trend in farm protection laws are not the first of their kind. Some states have “animal enterprise interference” statutes that intensify penalties for fraud, trespass, and physical damage to facilities. These laws are more focused on physical damage and trespass and less so on undercover investigations. Kansas passed the first of its kind, in 1991, followed by Washington State, California, Oregon, Montana, and North Dakota.
The following states have passed a farm protection law and reflect the modern trend in “ag gag” legislation:
Iowa’s bill, Senate File 431, makes it a crime for anyone without an owner’s permission to make, possess, or distribute any recording made on a farm ( see http://coolice.legis.iowa.gov/Cool-ICE/default.asp?Category=BillInfo&Service=Billbook&menu=text&ga=84&hbill=SF431).
Arkansas’s Senate Bill 13 was signed into law in 2013 making improper investigation by anyone who is not law enforcement a class B misdemeanor with a civil penalty of up to $5,000 (see http://www.arkleg.state.ar.us/assembly/2013/2013R/Bills/SB13.pdf).
Some states are following the current trend, introducing a farm protection bill, but are awaiting results:
North Carolina’s Senate Bill 648, the Commerce Protection Act of 2013, would affect not only farm businesses, but any kind of manufacturing, making fraudulent employment a class I misdemeanor and secret recordings exempt only during the 24-hour window for the footage to be handed over to law enforcement (see http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S648v1.pdf).
Pennsylvania’s House Bill 683 would consider secret recordings on farms without an owner’s permission to be a second or third degree felony. Additionally, this bill includes a section to criminalize anti-fracking activists who do the same (see http://legiscan.com/PA/text/HB683/id/733505).
Several other states have also introduced but failed to pass a variation of an “ag gag” bill, such as:
Tennessee’s Senate Bill 1248 was vetoed by Governor Bill Haslam in 2013 but would have provided for a 24-hour window for witnessed animal abuse on a facility to be handed over to law enforcement (see http://www.capitol.tn.gov/Bills/108/Bill/SB1248.pdf).
Nebraska’s Legislative Bill 204 would have prohibited trespassing and applying for employment under false pretenses. The bill also provided for a 24-hour window for turning over evidence of animal abuse (see http://nebraskalegislature.gov/FloorDocs/Current/PDF/Intro/LB204.pdf)
One chief reason farm protection laws are making headlines is due to the polar opposition they create. Animal rights groups and activists argue that these laws silence the whistleblower and support animal cruelty while the agriculture industry argues that it needs protection from false information that is perpetrated through the media. Two laws that are in recent and current litigation for these reasons are Idaho and Utah.
Idaho’s farm protection law was enacted February 28, 2014 and criminalizes fraudulent employment, trespass, or secretly filming without the owner’s consent. Since then, the Animal Legal Defense Fund (ALDF) and People for the Ethical Treatment of Animals (PETA), along with several other plaintiffs, have filed suit challenging the law based on the U.S. Constitutional protection of free speech and freedom of the press. On September 9, 2014, the judge determined that the First Amendment and equal protection challenges to the law are valid and will allow the two claims to move forward to trial.
Similarly, Utah’s farm protection law, passed in 2012, is also being challenged on constitutional grounds. Utah’s law criminalizes any secret recording on farms without the owner’s consent as well as fraudulent employment. On July 22, 2013, ALDF, PETA, and others filed a lawsuit challenging Utah's law alleging violations of the right to freedom of speech and equal protection. The anticipation of the outcomes of both lawsuits is sky high and will certainly be a tail-telling sign of the future of farm protection laws.