“Ag gag” refers to anti-whistleblower statutes that prohibit employees from taking pictures and recording video illustrating alleged cruelty to animals, food safety issues, and/or poor working conditions, during the farming process and/or restrict people such as activist and undercover journalists from obtaining illegal access (commonly through job application fraud) onto agricultural operations for this same purpose. I spoke on “Ag Gag” legislation last spring to the New York State Bar Association, Committee on Animals and the Law -my outline is available here.
A couple of states, Iowa, Kansas, Missouri, Montana, North Dakota, Utah, and Wyoming, have these laws in place that provide criminal sanctions for anyone who violates these laws by taking photographs or recording these videos or those who distribute them. The most recent state to institute this law was Idaho.
In 2012, an animal welfare group released graphic video that was taken while undercover of workers at an Idaho dairy mistreating cows. In response to this video, the Idaho Dairymen’s Association drafted legislation to criminalize undercover investigations in the future, which the Idaho governor signed into law in 2014. This law provides for prison term of up to one year or a fine up to $5,000.00 or both for violators.
Animal rights groups brought suit against the State challenging the statute for a violation of free speech. In August of 2015, U.S. District Court in Idaho found that the Idaho law was unconstitutional for criminalizing certain types of speech. The decision stated that, “[a]lthough 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 Idaho Attorney General has yet to decide whether or not he will appeal this decision.
Farms and those in the agriculture industry should be aware of what laws their own state regarding these types of recordings. More importantly, livestock operations should implement hiring procedures that help prevent undercover investigators from obtaining gainful employment on the farm. More information on suggested hiring practices can be found here.