It’s called the duck test. There is some agreement that it was Indiana poet James Whitcomb Riley who first coined the phrase:
“When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”
Many years later United Auto Workers secretary-treasurer Emil Mazey had this to say about quackery during a 1946 meeting in accusing a person of being a communist:
“I can’t prove you are a Communist. But when I see a bird that quacks like a duck, walks like a duck, has feathers and webbed feet and associates with ducks—I’m certainly going to assume that he is a duck”
My personal favorite duck test came from author Douglas Adams in his book Dirk Gently’s Holistic Detective Agency:
“I commend you on your skepticism, but even the skeptical mind must be prepared to accept the unacceptable when there is no alternative. If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidæ on our hands.”
U.S. District Court for the Southern District senior judge James E. Gritzner’s preliminary injunction last month prohibiting the state of Iowa from enforcing a law making it a misdemeanor criminal offense against people using deception to gain access to agricultural production facilities for all practical purposes used the duck test.
For years Iowa lawmakers pandering to their Big Ag pork production constituents have been looking for a way to prevent the public from knowing about animal cruelty, health violations, and other misdeeds going on at slaughter barns.
Iowa lawmakers latest attempt to drop a veil of secrecy over Big Ag operations is to void free speech constitutional protections 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.
This new ag-gag law, signed by Iowa Governor Kim Reynolds last March, replaced Iowa’s 2012 version which was declared unconstitutional by the courts last January.
It didn’t take very long for the American Civil Liberties Union and the Animal Legal Defense Fund to sue Iowa for relief on free speech grounds.
Gritzner’s ruling in favor of a permanent injunction shredded Iowa’s ag gag law:
“The deprivation of First Amendment rights is a serious harm, and Plaintiffs have shown that their planned undercover investigations will not proceed due to the risk of prosecution. By contrast, Defendants have not made any persuasive record regarding the interests the statute is said to serve…Defendants have done little to show that §717A.3B responds to ongoing issues of public concern unrelated to the suppression of free speech. By contrast, the public benefits from people and organizations exercising First Amendment rights and educating the public about important issues relating to animal abuse and safety at agricultural production facilities.”
Let me paraphrase….it the law generally reads like it’s unconstitutional, depends on unconstitutional content-based restriction on speech and unconstitutionally creates irreparable harm the law is unconstitutional. Quack.
The state of Iowa has motioned to have the legal challenge dismissed, but the court denied that motion on Monday, as well. No date has been set for the trial, but it’s clear Iowa probably will lose.
Similar ag gag laws have been defeated in Utah and Idaho and there are ongoing challenges in Arkansas, North Carolina and Kansas. Thus far the courts have recognized deception is protected by the First Amendment; telling white lies to gain entry undercover access to farm factories and publicize abuses outweighs the government’s desire to throw people in jail for such behavior.
Still, I expect it won’t be long before those ruffled feather Iowa lawmakers offer up Ag Gag law 3.0. Big Ag won’t quit till ag production is hidden from prying eyes.
About 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. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at firstname.lastname@example.org.