Federal Courts to Decide Constitutionality of Ag-Gag Laws

Two federal district courts are expected to rule on the constitutionality of ag-gag laws, laws which make it illegal for undercover investigators — often from established animal rights groups — to enter agricultural operations under false pretenses and make audio or video recordings documenting animal abuse.

A coalition of animal rights groups, including the Center for Food Safety and the Animal Legal Defense Fund, joined the American Civil Liberties Union and nearly a dozen other litigants in challenging these laws in two states: Idaho and Utah. The geography is significant as Idaho falls under the jurisdiction of the Ninth Circuit Court of Appeals, while Utah is located in the legal ambit of the Tenth Circuit, thus doubling the plaintiffs’ chances of seeing the laws overturned.

Idaho became the seventh state to pass an ag-gag law when Governor C.L. “Butch” Otter signed the bill in February. In 2013, ag-gag laws were proposed and debated across 11 states, though none were approved.

The bill in Idaho was proposed in response to a video released in 2012 by the group Mercy For Animals.

An investigator working at Bettencourt Dairies near Hansen, ID — one of the nation’s largest dairies and a supplier of cheese for Burger King — filmed numerous instances of mistreatment, including workers punching and kicking cows. The investigator also documented a tractor pulling a downed cow by the neck. The company fired 5 employees, 3 of which were later found guilty of animal abuse.

The bill’s sponsor, state senator Jim Patrick, denounced these undercover operations, alleging that these groups ultimately “intend to destroy” the businesses they investigate. The Idaho Dairymen’s Association, an interest group representing the state’s $2.4 billion dairy industry, lobbied on the bill’s behalf. The group’s attorney, Daniel Steenson, defended the measure, arguing that “a factory owner, like you in your home, has the appropriate right to prohibit you from making recordings.”

Idaho’s deputy attorneys general, Clay R. Smith and Carl J. Withroe, also affirmed the law’s legal soundness. They cite the 1971 Court of Appeals case, Dietemann v. Time Inc., in which the court ruled against patients planting electronic surveillance devices inside a physician’s office on the suspicion that the doctor was unlicensed and practicing shoddy medicine.

The ACLU disagrees and is challenging the constitutionality of ag-gag laws in court. It cites a 2012 Supreme Court case, United States v. Alvarez, which ruled that deliberately misrepresenting one’s background or character — in this case, lying about being awarded a military honor — did not amount to fraud.

The civil liberties group adds that such deception is protected speech so long as it does not directly cause harm. Since it is the workers’ abuse that causes the businesses harm and the investigators are simply documenting it, the ACLU believes that the undercover investigators have a right to gain employment at these facilities.

Tennessee Governor Bill Haslam vetoed his state’s ag-gag law in 2013. That version of the bill also included a provision requiring an investigator to turn over any evidence of animal abuse to law enforcement within 48 hours. Animal rights groups find such provisions especially insidious, since they prevent investigators from determining whether the abuse is incidental or systemic.

In 2013, Taylor Radig, an investigator from Compassion Over Killing, documented a pattern of abuse at Quanah Cattle Company in Colorado. Though the state does not have an ag-gag law, she was charged as being complicit in animal abuse because she waited two months after her employment ended to turn the footage over to the police. The charges were later dropped.

Utah and Idaho’s ag-gag laws do not contain this “mandatory reporting” provision. The Idaho version, however, punishes violators with up to a $5,000 fine and a maximum prison sentence of one year — twice that of a sentence for animal abuse.

Critics of these laws also point out the importance of investigators preserving food safety. Downed cows, for instance, are more likely to harbor fecal pathogens, including E. coli, salmonella, and “mad cow” disease.

Moreover, animal rights groups claim that these investigations are an effective way to detect mistreatment that otherwise goes unreported. An investigator from Mercy For Animals uncovered rampant abuse of turkeys at a Butterball facility in North Carolina, a company that provides 20 percent of the nation’s turkey meat.

The footage, which showed workers stomping on turkeys, throwing them around, and slamming them into transport crates, led to 5 workers pleading guilty to animal abuse. Animal rights groups have produced 80 such videos all together.

A vast majority of Americans value these findings. According to a 2014 survey of nearly 3,000 consumers, 89 percent said they are concerned about the welfare of animals raised for food. Only 10 percent of the 10 billion animals slaughtered in the country each year receive humane treatment, according to the American Humane Association’s certification standards.

Idaho and Utah have urged both federal courts to dismiss the lawsuits. The deadlines for dismissal have passed. Dates for the trials have yet to be announced.

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