What's the outlook for ag-gag laws?
Much has been written about so called "ag-gag laws." But other than a catchy moniker, few legal analysts can elaborate on what exactly an ag-gag law is. And fewer can speak to what the hullabaloo is all about.
It all started about half a decade ago. There had been quite a few high profile investigations of farms by animal rights activists. The trouble was these investigations were "undercover." You may have seen video on YouTube or somewhere on the internet pertaining to these undercover investigations. Network news shows had footage that purportedly showed poor treatment of animals, particularly at certain poultry farms.
In at least one case, the undercover investigation was conducted by someone who worked for an animal rights group. The person applied for a job at a poultry farm, allegedly providing false information in order to gain employment, then surreptitiously recorded the alleged poor treatment of animals.
Partly in response to these undercover investigations, some states passed legislation that criminalized the conducting of investigations in this manner. For example, in Iowa, a bill was passed which made the unauthorized filming of operations at an agricultural facility a crime. And the possession and distribution of these films was also made a crime.
In the legal world, surreptitious documenting — by film, especially — of nearly any activity is frowned upon. If someone surreptitiously films a human being in a private room — home, hotel, work — it not only can be a crime, but it can result in the offender being required to register under many state's laws regarding sex offenders.
But surreptitious filming in a public place is an entirely different matter and is generally permissible. So when lawmakers in Colorado, Iowa, Minnesota, Utah and other states began passing similar laws, great debate arose regarding the constitutionality of so called "ag-gag laws."
On one side of the argument are the farmers and those supporting them. They contend that there are laws in place regarding appropriate treatment of animals, and those laws are sufficient. Additionally, we farmers in general are tired of federal or state regulations that limit the way in which we feed the world. So if government interference is not desirable, then neither is interference from private parties. Therefore, most farmers support laws that discourage interference with the operation of their facilities. So, whether you call it an ag-gag law or something else, farmers generally support laws that protect the way they run their agricultural operations.
On the other side of the argument are the animal rights activists. They are against ag-gag laws, and they contend that such legislation runs counter to the media's watchdog role for the public. They also contend that such legislation runs afoul (no pun intended) of the First Amendment and free speech. Many such activists have vowed to undertake activity to intentionally violate ag-gag laws, just to provoke criminal prosecution and to test the constitutionality of such laws.
Just last week, the 10th U.S. Circuit Court of Appeals issued a ruling that two Wyoming statutes that could be defined as ag-gag laws are potentially in violation of constitutional free-speech protections. The laws were passed to discourage environmental activists from trespassing in order to gather data about wildlife, streams and other natural resources on ranchland.
What came to a head in the Wyoming case was the issue of whether or not a person's free speech rights are still protected even if they are trespassing. The 10th Circuit says "yes" to that question.
Most interesting about the Wyoming laws is that they were originally written only to apply to public lands but later were amended to apply to private land. So when the original lawsuit was brought, the trial judge ruled that there was no constitutional right to trespass on private land.
The 10th Circuit sent the case back to that judge for further consideration. This legal issue is far from over.