Ag-gag laws are under fire
September 22, 2017
Ag-gag laws are designed to protect producers from undercover videos filmed of their operations. However, recent court rulings suggest producers will not have sanctuary due to the laws' conflicts with the First Amendment.
In Utah, a federal district court ruled against the state's ag-gag laws, citing a violation of the First Amendment of the U.S. Constitution. In Idaho, a court ruled similarly and the case is now in appeals.
As rulings and appeals abound, it may be time, according to Paul Goeringer, extension legal specialist, University of Maryland, for producers to work with producer groups to review and determine that current practices are up to date, proper employee training and tools are available, background checks are conducted on new employees and employee handbooks and contracts are in place to help limit the issues ag-gag laws are designed to address.
The laws are designed to protect producers against the videos which typically feature livestock handling practices that are not best practices or industry approved. According to Agweek, at least one of the cases include video recorded by a member of an animal rights group surreptitiously after providing false information to gain employment.
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Legally speaking, Peter Welte said surreptitious filming or documenting a human being in a private room, either in their home, hotel or work, can be a crime and also can result in the offender being forced under some state's laws to register as a sex offender. Filming in a public place, Welte said, is typically permissible, making the constitutionality of the ag-gag laws questionable.
The Tenth U.S. Circuit Court of Appeals in Denver ruled two Wyoming statutes are "potentially in violation of constitutional free-speech protections." These laws were enacted to specifically discourage environmental activists from trespassing to gather data.
Trespassing aside, Goeringer pointed out the First Amendment limits state laws limiting free speech with the exception of defamation, obscenity, true threats and child pornography. Additionally, lies that cause "legally cognizable harm" fall outside the protection of the First Amendment.
Goeringer applied the lying standard to Utah's ag-gag laws and determined that the law "would be exempt from the First Amendment if a person gains access to the operation through a lie and interferes with ownership or possession of the operation. Alternately, if the lie does not interfere with the ownership or possession, the lie falls under the protection of the First Amendment.
With the questionable nature of ag-gag laws, Goeringer maintains the options in the hands of producers are numerous. Background checks and references can help a producer determine whether a potential employee is who they claim to be. Employment contracts also can make all images taken on the farm the property of the farm, or can ban recordings entirely. Proper training can also ensure that employees are properly trained in livestock handling. A proactive approach, he said, will do more good than many ag-gag laws could do in protecting the operation's best interests.
— Spencer is a freelance writer from Wiggins, Colo., where she and her family raise cattle and show goats. She can be reached at firstname.lastname@example.org or on Facebook at Rachel Spencer Media.