Big Meat is at it again. Begging the courts – any court – to carve out a First Amendment exemption that would prevent trespassers at processing plants and production facilities from recording and disseminating illegal or unethical activity.
To date the Supreme Court hasn’t been sympathetic with Big Meat’s plight.
Kansas
In 2022, The high court reviewed Animal Defense Fund v. Kelly. Plaintiffs filed a complaint arguing the Kansas Farm Animal and Field Crop and Research Protection act was unconstitutional. The act made it a criminal offense to use fraud or deception to gain access to animal facilities with intent to damage the facility including taking pictures by photograph, video camera or by any other means. The federal district court ruled the law violated the First Amendment and barred Kansas from enforcing the provisions. The Tenth Circuit Court upheld the lower court:
“The Act’s broad proscriptions include prohibiting speech, such as a statement made to obtain the consent of the owner of an animal facility to exercise control over it. The Act thus regulates not only what ALDF investigators may or may not do, but what they ‘may or may not say.’”
Kansas Gov. Laura Kelly and Attorney General Dereck Schmidt’s petition for a writ of certiorari sought to overturn the Tenth Circuit, but the Supreme Court refused to take up the case. Strike one.
North Carolina
In 2023, the U.S. Supreme Court reviewed a complaint first filed in 2016 by People for the Ethical Treatment of Animals (PETA) and other animal advocacy groups, challenging the constitutionality of the North Carolina Property Protection Act. The law made it a civil violation for:
- An employee who intentionally enters the nonpublic areas of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and thereafter without authorization records images or sound occurring within an employer’s premises and uses the recording to breach the person’s duty of loyalty to the employer.
- Knowingly or intentionally placing on the employer’s premises an unattended camera or electronic surveillance device and using that device to record images or data.
In PETA, et al. v. Stein, et al. plaintiffs challenged the law on First Amendment grounds. Specifically they claimed the First Amendment prohibited North Carolina from creating tort law against employees who secretly record information in nonpublic areas of an employer’s property and then reveal that information to the public, breaching a duty of loyalty to the employer.
The Fourth Circuit Court ruled that plaintiffs actions were newsgathering activities, amounting to capturing videos or recordings in both public and private farm spaces – and as such, were protected under the First Amendment.
“…while we agree that an employer could freely choose to deny entry to journalists who seek to secretly record its inner workings, it does not follow that a State can create ‘new categories of unprotected speech’ to punish those journalists. The First Amendment limits the government; the government does not limit the First Amendment. Even granting that whole categories of speech can go unprotected, the challenged subsections would nonetheless implicate the First Amendment because they discriminate based on speaker and viewpoint.”
The Supreme Court then denied two writs associated with the case, one from North Carolina Attorney General Josh Stein et al., and the other from the North Carolina Farm Bureau Federation. Strike Two.
But Big Meat remains undaunted. In March, the U.S. District Court for the Southern District of Iowa upheld state law that “imposes enhanced penalties for recording while trespassing.” It’s the latest twist in the long ongoing case Animal Legal Defense Fund v. Reynolds. On remand from the Eighth Circuit Court, the district court affirms what amounts to a First Amendment carve out for recordings made during an unlawful trespass. The court found that such recordings:
“…exacerbates privacy and property intrusions by creating a permanent record that transforms a temporary physical invasion into an enduring breach that transcends both time and space,”
The district court goes on to say:
“The First Amendment indeed protects the right to gather and disseminate information on matters of public concern, but that protection is qualified when the gathering method involves unlawful conduct, especially when the information could be otherwise obtained lawfully.”
The ruling will soon again be before the Eighth Circuit Court. Of course this ongoing debate over ag-gag laws is all because of the Supreme Court’s inexplicable reluctance to settle First Amendment ag-gag/trespass law cases brewing all across the country.
When federal district courts do strike down ag-gag laws it is often because they fail a strict scrutiny standard requiring narrow jurisprudence to the stated purpose of protecting private property rights. Federal judges have also found ag-gag laws out of bounds because they are not content-neutral. These sound like constitutional issues to me.
What is needed is clarity regarding a smorgasbord of state ag-gag laws. And at the end of the day only the SCOTUS can do so. It needs to act forthwith.
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