At a time when consumers are demanding greater transparency in the food system – and some food companies are delivering by means of genetically modified organism labeling and removal of artificial food dyes — a troubling North Carolina law that runs counter to that goal has recently gone into effect. The state’s so-called “ag-gag” law prohibits whistleblowers from making audio or video recordings inside industrial agricultural facilities. Following the success of a similar suit in Idaho last year, consumer protection advocates and government watchdog groups have brought a constitutional challenge to the law in a North Carolina federal district court.
The public has been benefitting from undercover documentation of conditions inside food production facilities since Upton Sinclair wrote The Jungle at the turn of the last century. In recent years, undercover videos at animal agriculture facilities have exposed horrific instances of animal abuse — sick turkeys thrown into grinding machines still alive, “downer” cows (too sick to walk on their own and often associated with disease) with chains wrapped around their necks being dragged by a tractor, and filthy conditions at a facility where chickens produced eggs (an indicator of possible salmonella contamination), to name very few. As noted, these alarming incidents have an effect on food safety. Further, some videos also reveal exploitation of workers; in September, Animal Legal Defense Fund (ALDF) released a video that depicted very high line speeds in slaughterhouses that have been linked to repetitive motion injuries in workers.
Ag-gag laws, which often criminalize the act of making an undercover video in an industrial agricultural facility, prevent individuals from documenting—and the public from discovering — these moments. Such images are important in many different contexts: the videos help shine light on unsafe or abusive practices, thus discouraging the behavior; and they may also serve as evidence in lawsuits, helping expose violations of worker safety and animal abuse laws.
Despite these legitimate concerns, the corporate animal-agriculture industry and the legislators who do their bidding as proponents of ag-gag laws promote a narrative in which whistleblowers’ only motivation is to wreak havoc for its own sake. In several high-profile instances, ag-gag proponents have likened activists and whistleblowers to terrorists, and equated the release of a damning video to 9/11. The American Legislative Exchange Council (ALEC), which supplies model legislation to right-wing state legislators, drafted and disseminated a model ag-gag bill, “The Animal and Ecological Terrorism Act,” criminalizing whistleblowing activities and placing violators on a terrorist registry. This perverted narrative doesn’t end at comparisons to terrorists: Some states have adopted a strategy that revolves around quick reporting requirements. Quick reporting requirements mandate that evidence of animal abuse be turned over to authorities within mere hours, on pain of criminal penalties.” In practice, these rules prevent animal rights organizations from collecting incriminating images and releasing them in a way that paints the fuller picture of abuses.
The most recent ag-gag law comes from North Carolina, which differs in several respects from other states’ ag-gag laws. Instead of criminalizing whistleblowing activities, the law permits an employer to recover damages when an employee breaches the “duty of loyalty” to their employer by recording images or taking photographs of non-public parts of the workplace. The law is also far broader than any other state’s law. It prohibits undercover recording at any workplace — not just those that occur at agricultural facilities.
Two weeks after the law went into at the beginning of this year, a coalition of public interest groups filed a motion in federal court to enjoin the state from enforcing it. The motion argues that the law violates the First and Fourteenth Amendments to the United States Constitution.
The North Carolina plaintiffs have reason to be optimistic: A federal judge struck down Idaho’s ag-gag law as unconstitutional last year. Idaho’s law arose following Mercy for Animals’ release of videos filmed inside an Idaho dairy that showed employees kicking and beating animals, and dragging a sick cow using a tractor and a rope tied around the animal’s neck. The Idaho Dairyman’s Association responded to the negative publicity by focusing on silencing whistleblowers. Governor Butch Otter signed the ag-gag bill into law in 2014, creating a criminal felony offense for individuals who participate in or facilitate undercover investigations at agricultural facilities.
In August, 2015, a federal court in Idaho held that the Idaho ag-gag law violated the First Amendment. Determining that the bill imposed both content and viewpoint based restrictions on speech, the court subjected it to the “strict scrutiny” analysis typical of First Amendment cases — requiring that the law, to be constitutional, be narrowly tailored to accomplish a compelling state interest. In the court’s analysis, the law failed to meet the “compelling interest” requirement because the state interest in protecting private property paled in comparison to the lofty interests typically associated with valid speech restrictions (e.g., preventing defamation or child pornography). The court went on to note that even if the law’s interests were properly “compelling,” the law was not narrowly tailored. The court also found that the law impermissibly discriminated based on content because it specifically prohibited speech critical of an agricultural production facility’s practices. In December, Idaho’s attorney general appealed the decision to the Ninth Circuit.
The Idaho court’s application of strict scrutiny and its favorable ruling are good signs, but could the differences between Idaho’s and North Carolina’s laws impact the constitutional analysis? Existing precedent suggests they will not. The Idaho court applied the “strict scrutiny” test because the law imposed content-based restrictions. The drafters of the North Carolina law seemingly attempted to avoid that same fate by using broad language regarding the “duty of loyalty” and applying it widely across industries, rather than just to agriculture. But the law makes no secret of targeting whistleblowers, carving out an exception for individuals who turn information over to authorities, but singling out for liability people who collect information for public consumption. The only plausible explanation for the legislature passing a law containing such a distinction is to silence critics who can inflict economic damage on an industry. In fact, North Carolina Governor Pat McCrory comments in a veto of an earlier version of the bill, that undercover investigations pose a “particular problem” for the agricultural industry, only underscores this explanation. As for the fact that Idaho’s ag-gag law was a criminal statute and North Carolina opted to enact a civil one, the plaintiffs in North Carolina need not be concerned. Courts do not distinguish First Amendment analysis in the face of either a government’s criminal prohibition of speech or a civil law that places a burden on speech.
The push for ag-gag laws sends a clear message about proponents’ priorities, specifically that corporate profit is more important than protecting disadvantaged workers and food safety, as well as preventing animal abuses. When the people who profit from what goes on behind closed doors in agricultural facilities seem so intent on avoiding scrutiny, Americans have good reason to worry. Free speech, especially in the context of the country’s food system, is an integral component of the march of reform. Ag-gag laws threaten to halt that progress.