Opinion: Big ag searching for constitutional-proof ag gag law

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It's an iron clad fact.  Big ag packing companies want to keep their daily practices secret from public scrutiny.  

Spearheaded by big-ag lobbyists and enabled by big-ag friendly state legislatures, numerous laws have made it illegal to use deception to secretly videotape treatment of animals at private livestock and meatpacking facilities.  

Iowa's 2012 “ag gag” law is typical, but ultimately failed to pass constitutional muster.

But as I noted in this previous blog, it wouldn't be long before Iowa's state legislature passed a new ag- ag law. 

As it turned out, it took just two months.  

Iowa's new law, the Agricultural Facilities Trespass Act, looks to blunt First Amendment arguments favoring using deception to gain entry to livestock factory farms to secretly video company practices.

The new Iowa state law is similar to its predecessor.  U.S. District Court for the Southern District of Iowa Senior Judge stuck down the original law because it neutered free speech:

“If the state is going to restrict protected speech, the restriction must be “actually necessary” to achieve the state’s compelling interest…A prohibition is actually necessary if there is a “direct casual link between the restriction imposed and the injury to be prevented.  Defendants have produced no evidence that the prohibitions of (the statute) are actually necessary to protect perceived harms to property and biosecurity.” 

Iowa lawmakers new law attempts to terminate free speech arguments by making it specifically a crime to use deception to agricultural production facilities with the intent of causing economic, physical or other injury to the operation.

Of course it took no longer than a New York minute for the American Civil Liberties Union of Iowa to file a new lawsuit challenging Iowa's law.

ACLU may win again on the merits of its argument,  but eventually ag-gag proponents are going to find something that can pass First Amendment constitutional muster.  And maybe that law has already been on the books for half a decade. Indiana's ag-gag law takes a different tack. Indiana's trespass law defined agricultural operations as “private dwellings.”  

The law does not ban shooting secret videos, nor contains penalties for those wishing to enter farm operations through deceive means like falsifying job applications.  In other words, the typical restrictions on many state ag-gag laws.  

What Indiana's law does do is give agricultural operations of all types the exact same trespass protections as if the farm operation was a private home or a church or a school.  

Under the law, anyone not authorized to be on agricultural property can be considered a trespasser.  

Convicted felony offenders can face jail time up to eight years in state prison.  The brilliance of the law is trespass ab initio.

Under the concept, a person can have access to property for a specific purpose, but if the purpose is exceeded that person becomes a trespasser.

So say an Indiana farm operation hires someone to specifically clean out animal pens.  They have licenses to be there for the specific purpose, but once they begin secretly shooting video of operations they have exceeded the score of their license and can be prosecuted under  trespasser laws.

From where I sit, big ag will not go quietly into the night.  

Former Supreme Court justice Louis D.Brandeis once said “sunlight is said to be the best of disinfectants.”

Unfortunately big ag companies and state lawmakers who benefit from their relationships with big ag disagree.  

 

About Dave Dickey

Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.