The animal protection campaigner Jordi Casamitjana looks at the current situation with Ag-Gag Laws in the world, which aim to silence animal rights investigators
I don’t take it for granted.
I grew up in Catalonia when it was ruled by a Spanish fascist regime — not just a far-right regime, but an actual fascist regime led by an army general who got in power after a bloody coup d’état — so I don’t take for granted what it means to have freedom of speech. I live in the UK now, where there are laws that, up to a degree, guarantee such freedom — you can even publicly mock the monarchy here. However, I never interpreted this freedom as a cart blanche to say whatever I want wherever I want, but as the guarantee that, if I say the truth about something wrong that needs changing, I would not be punished for it. For me, the freedom of speech I value is the freedom of blowing the whistle about wrongdoing and injustice.
I have worked in animal protection for many years, and part of that work has been investigating animal exploitation as an undercover investigator. Therefore, for me, the freedom to “blow the whistle” has been very important. I exercised such freedom in 2018 when I took legal action against a former employer who dismissed me because I was a vegan. I claimed that I had been dismissed because I was an ethical vegan who blew the whistle about my former employer (an animal welfare organisation) enrolling me into a pension fund that invested in companies involved in animal testing. I based my case on two pieces of legislation: The Equality Act 2010, which deals with discrimination, and the Employment Rights Act 1996, which deals with whistleblowing. When through the development of the case a judge ruled that ethical veganism was indeed a protected philosophical belief under the Equality Act 2010, my discrimination case became stronger, so I dropped my whistleblowing case to make my litigation simpler. That was a good move as I ended up being successful.
I knew how lucky I was to live in a country where I could use the system not only to show the truth about animal exploitation and suffering but also to stop those who wanted to silence me. If I had been in the USA instead of the UK, and if my whistleblowing had been about what farms do to the animals they exploit, as opposed to what my employers were indirectly investing into, I would not have been so lucky. Well, it would have depended on which state I had been in when trying to exercise my freedom of speech. If I had been in Alabama, Missouri, or Iowa, my freedom of speech as an animal protection investigator would have been more limited.
In several states in the US anti-whistle-blower laws have been passed that apply within the agriculture industry. They intentionally limit public access to information about agricultural production practices, particularly animal farming. These laws are designed to prevent whistle-blowers, journalists, investigators, activists, and other concerned citizens from documenting and reporting to the public the conditions and treatment of animals on farms. They are popularly known as “Ag-Gag” laws, joining the initials of animal agriculture and the term “gagging” (which is a metaphor for “silencing”). These laws forbid undercover filming or taking photos of what happens in farms without the consent of their owner, and as such particularly affect the work of animal rights investigators. However, some of these laws were repealed by higher courts, so the situation about which ones are still active and what can they still do is quite fluid.
In this article, I would try to summarise what is going on right now about this.
The Genesis of Ag-Gag Laws
The term Ag-Gag was first used by Mark Bittman in an April 2011 column in The New York Times, but the concept dates back to the early 1990s when some states passed laws that made it illegal to record images in an animal facility without the owner’s permission.
The Center for Constitutional Rights and Defending Rights & Dissent define an ag-gag law as having at least one of the following: 1) a prohibition against photography, video recording or other document collection; 2) a prohibition against “misrepresenting oneself to gain access to an animal agriculture facility”; and 3) requiring individuals to report animal cruelty to authorities within a short time of witnessing the event. Therefore, these types of laws clearly target animal protection investigators and whistleblowing workers aiming to expose the cruelty of animal agriculture through the media and public campaigning.
It all really started in the 1980s. Soon after PETA (People for the Ethical Treatment of Animals) was founded in 1980, one of its co-founders, Alex Pacheco, went undercover into a federally funded research laboratory (the Institute for Behavioural Research) to expose the cruelty of vivisection. This ground-breaking investigation (known as the Silver Springs monkeys case) led to the first arrest and criminal conviction of a US animal experimenter for cruelty to animals, and the first confiscation of abused animals from a laboratory. PETA’s undercover investigation contributed to the passage of major amendments to the Animal Welfare Act in 1985. This new tactic of animal rights activism (undercover investigations aiming to expose the hidden reality of animal exploitation industries and to change the law to reduce animal suffering or abolish some practices) became a model that many others imitated all over the world, applying it also to factory farms.
The US animal exploitation lobby reacted by attempting to pass a federal law that would ban such investigations, but a 1989 Congressional proposal to do so failed, so this is when states began creating the first ag-gag laws at the state level intending to do what the federal law failed to do at a national level.
The first Ag-Gag law passed was in Kansas in 1990. It was coded K.S.A. 47-1825 – 1830, and it prohibited, without the effective consent of the owner, “to enter an animal facility, not then open to the public, with intent to commit an act prohibited by that law, as well as remain concealed, and enter an animal facility to take pictures by photograph, video camera or by any other means.”
A year later two similar Ag-Gag laws were passed in Montana (The Farm Animal and Research Facility Protection Act 1991) and North Dakota (Animal Research Facility Damage Act 1991), and in 2002 Alabama followed suit (Farm Animal, Crop, and Research Facilities Protection Act 2002). The spread of Ag-Gag laws across the US seemed to stop, but an increase in undercover investigations and exposés from the first decade of the 21st century caused a second wave of these laws to be introduced in more than half of all state legislatures across the country. Some of these laws were not passed, others have been enacted, and others have been struck down when higher courts ruled they were unconstitutional.
Other countries have also enacted Ag-Gag laws, but they are more recent. For instance, in Australia, between 2015 and 2017, New South Wales passed several such laws. The Right to Farm Bill 2019 added criminal penalties for those who damage property, release livestock, or induce others to commit “aggravated unlawful entry.” At the Australian federal level, the Criminal Code Amendment (Agricultural Protection) Act 2019 penalises those who publish information on the internet with the intent of inciting other “green-collared criminals” to “unlawfully damage or destroy property, or commit theft, on agricultural land”. Some states of Canada also recently passed Ag-Gag laws.
Striking Down Ag-Gag Laws
Ag-Gag laws have been opposed not only by animal rights and vegan organisations, but also by other people who care about animal welfare, consumer rights, social justice, the environment, civil liberties, journalism, and public health. These laws allow animal agriculture industries to get away with all sorts of wrongdoing that not only affect the animals they abuse but also the workers they exploit. It is also ludicrous that consumers are not allowed to know how the food they buy was produced because those who challenge the sanitised versions of the companies producing it are silenced and punished for speaking up.
Animal advocates organisations such as the Legal Animal Defense Fund and the ASPCA have brought nine lawsuits challenging Ag-Gag laws across the US. As a consequence of such opposition, several state Ag-Gag laws have been overturned as violations of the First Amendment to the US Constitution — which protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
In 2012, Utah passed its Ag-Gag law coded Utah Code § 76-6-112 prohibiting recording images or sounds of an “agricultural operation” without the owner’s consent, and gaining employment with the intent to do so. It was struck down for being unconstitutional in 2017, and there was no appeal.
In 2012, Iowa passed its first Ag-Gag law coded Iowa Code § 717A.3A making it Illegal to “obtain access” to a facility “by false pretences” and to obtain employment based on false representations while intending to commit an act not authorized by the employer. However, a 2021 ruling by the Eighth Circuit found it partially unconstitutional. Specifically, it found that § 717A.3A(1)(a) (access provision) was constitutional but § 717A.3A(1)(b) (employment provision) was unconstitutional. The animal agriculture lobby did not give up, so in 2019 Iowa passed another Ag-Gag law coded Iowa Code § 717A.3B making it illegal to enter a facility or gain employment under “false pretences” while intending to harm the owner or its operations (effectively establishing the crime of “agricultural production facility trespass.”). However, it was struck down on appeal as unconstitutional the same year.
Again, that did not stop the efforts of the industry so in 2020 the Iowa Code §716.7A was passed making it Illegal to enter or remain on the property of a food operation without consent, and in 2021 the Iowa Code § 727.8A was also passed making it illegal to knowingly place or use a camera or other electronic surveillance device that records images or data. The former is still active, but the latter was ruled unconstitutional by the District Court for the Southern District of Iowa. On 26th September 2022, US District Judge Stephanie Rose struck down this ag-gag law in a lawsuit filed on 10th August 2021 by a group of animal protection organizations (Iowa Citizens for Community Improvement, Bailing Out Benji, Food & Water Watch, the Animal Legal Defense Fund and People for the Ethical Treatment of Animals).
In 2014, Idaho passed its Ag-Gag law coded Idaho §18-7042 making it illegal to enter a facility or obtain employment there under misrepresentation, as well as to obtain records or record audio or video without express consent. However, in 2015, it was struck down as unconstitutional. After the state appealed, the Ninth Circuit Court of Appeals affirmed the decision in part, upholding the lower court’s ruling that it is unconstitutional to ban recording at factory farms.
In 2015, Wyoming passed two Ag-Gag laws, one criminal (Wyo. Code § 6-3-414) and one civil (Wyo. Code § 40-27-101), both making it Illegal to cross private lands and collect data (e.g. photographs or samples) to give to federal or state regulators. In 2018 both were struck down for being unconstitutional by the Tenth Circuit Court of Appeals.
Also in 2015, North Carolina passed its Ag-Gag law coded SL 2015-50 which made it illegal to access non-public property and exceed one’s authority, including an employee knowingly placing a camera or recording device on the property. NC House and Senate overturned the veto of the Governor, but on appeal in 2020, the law was struck down by the Middle District Court of North Carolina for being unconstitutional. In February 2023, the US Court of Appeals for the Fourth Circuit upheld that ruling stating that undercover investigations and whistleblowing are considered newsgathering activities protected by the First Amendment.
Montana introduced a quick-reporting bill in 2015 stating that “a person who knowingly fails to report evidence of cruelty to animals at an animal facility within 24 hours commits the offence of cruelty to animals.” This particular provision did not progress, but this state still has the Ag-Gag law that was passed in 1991.
In 2021, the first Ag-Gag law in any US state, the one in Kansas passed in 1990, was ruled unconstitutional and struck down by the Tenth Circuit, affirming a lower court ruling that had struck it down previously.
In the case of Texas, one proposed Ag-Gag law (H.B. 1480) was later amended to remove the ag-gag provisions. However, H.B. 1643 was passed in June 2017, which makes it illegal to use a drone to take photos of a Concentrated Animal Feeding Operation (CAFO), which is another term for big factory farms.
Other states tried to pass Ag-Gag laws but they failed. In particular, Arizona, California, Florida, Illinois, Indiana, Kentucky, Minnesota, Nebraska, New Hampshire, New Mexico, New York, Pennsylvania, Tennessee, Vermont, Washington, and West Virginia.
The Currently Active Ag-Gag Laws
Unfortunately, right now (March 2023) still six US states have active Ag-Gag laws not currently challenged in superior courts yet. These are Alabama, Iowa, Missouri, Montana, North Dakota, and Texas. Two of these are the states which created the first Ag-Gag laws decades ago (North Dakota and Alabama).
In Alabama, it is still illegal to “obtain access” to a facility “by false pretences” and to obtain or possess records or data by deception or theft. In Iowa, it is still illegal to enter or remain on the property of a food operation without consent (“food operation trespass”). The Ag-Gag law in Missouri still requires videos or other records of animal abuse or neglect to be turned over to authorities within 24 hours of the recording. In Montana, it is still illegal to enter an agricultural facility, without the consent of the owner, and with intent to damage the enterprise of the facility “to take pictures by photograph, video camera, or any other means with the intent to commit criminal defamation.” In North Dakota, it is still illegal to enter an animal facility and “use or attempt to use a camera, video recorder, or other video or audio recording equipment.” Texas has only a partial Ag-Gag law that only prohibits investigating Concentrated Animal Feeding Operations (CAFO) with aerial drones.
Some Ag-gag laws have been legally challenged and the outcome is still pending. For instance, in 2017, Arkansas passed its Ag-Gag law (Ark. Code § 16-118-113), which makes it Illegal to access non-public/commercial property and record images or sounds that damage the owner. This law is being currently challenged in court (since 2019), and in 2021 the Eighth Circuit remanded this law (which means sending it back to a lower court for further action).
In Canada, the Security From Trespass and Protecting Food Safety Act is an Ag-Gag law passed in 2020 applicable to the state of Ontario. This law prohibits unauthorised persons from trespassing on farm property and animal processing facilities, and prohibits protesters from interacting with livestock hauliers. It was passed one day before Animal Save’s activist Regan Russell was killed when run over by a truck outside the country’s oldest pig slaughterhouse in Burlington — the driver recently pleaded guilty to careless driving. There is also an Ag-Gag Bill in the Canadian state of Alberta, the Trespass Statutes (Protecting Law-Abiding Property Owners) Amendment Act. The Ag-Gag laws in Australia mentioned earlier are still active.
Ag-Gag laws are carnism‘s last attempt to stop the building of the vegan world that is becoming increasingly urgent. By preventing the public to learn what animal agriculture does to animals, these laws are also damaging food safety, workers’ rights, environmental protection, and ultimately one of democracy’s most precious assets, freedom of speech. Silencing whistle-blowers, hiding the truth from the public, and punishing those who challenge the status quo with compelling evidence and facts is the favourite Modus Operandi of fascist regimes. With the Ag-Gag laws that are still hiding the truth, states such as Alabama, Iowa, Missouri, Montana, Texas, North Dakota, Ontario, and New South Wales are closer to this unfortunate paradigm — which most decent people would vigorously oppose.
However, it seems that the tide is turning, and the higher courts are gradually correcting this justice mistake — although slowly, and not everywhere yet.
We should not take for granted the freedom of speech we may have if we are lucky to be living in a progressive place where vegan animal rights investigators can continue to do their job for humanity, the animals of the world, and planet Earth.
I don’t take it for granted.