Shooting the Messenger: A Common-Sense Analysis of State “Ag-Gag” Legislation Under the First Amendment
“As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy . . . . The only time I ever refused to sample my brothers’ culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn’t an idiot.”
Leslie Hatfield’s quote raises a simple question—what did her brother have to hide? As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America. Despite its major role in providing food to the public, the factoryfarming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. To date, the most common means of exposing these concerns is through undercover investigations—activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws.
Critics of the proposed legislation have commonly referred to the statutes as “whistleblower suppression” laws, while supporters have referred to them as “animal interference” laws, but it was Mark Bittman, of the New York Times, who coined the most popular term—“ag-gag” laws. As of the publication of this Note, five states have “ag-gag” laws on the books, while eight other states are either considering or have recently rejected similar legislation. “Ag-gag” laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the jobapplication process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos.
This Note will focus primarily on the second and third categories of “ag-gag” legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether “ag-gag” laws amount to impermissible, content-based restrictions on speech. Additionally, this Note will consider whether “ag-gag” laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. . .
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