Federal Court Says Iowa's Ag Gag Law Is Unconstitutional

from the because-of-course-it-is dept

Mon, Jan 14th 2019 10:43am — Tim Cushing

As farms have found themselves scrutinized for their practices, there's been a legislative desire to cover questionable actions under the protective garb of opacity. Ag lobbyists have successfully pushed for laws criminalizing the exposure of facts. As a bonus, they've also secured legislation labeling animal rights activists and others concerned about farm animal well-being as "terrorists."

The victories have been short-lived. Anyone not completely consumed by self-interest would recognize the laws violate the First Amendment by preventing fact-gathering or dissemination of observations by those who've bluffed their way onto farms precisely to uncover abusive practices. Courts are overturning these laws, but that's not stopping anyone from writing new ones just as unconstitutionally sound. Fortunately, a recent federal court decision [PDF] adds to the ammo opponents of these laws can use to bring them down. (via Courthouse News Service)

Iowa's "ag gag" law was a direct response to criticism of farm practices -- criticism driven by undercover investigations by journalists and activists posing as farm employees. State legislators had a host of bad reasons for the law -- all of them dancing around the actual reason: to prevent criticism of farm practices.

Lawmakers described the bill as being responsive to two primary concerns of the agricultural industry: facility security (both in terms of biosecurity and security of private property) and harms that accompany investigative reporting. For example, as to security, then-Representative Annette Sweeney provided: “With this bill we want to make sure everybody involved in our livestock facilities and working within in those facilities is forthright, and want to make sure our livestock is being kept safe,” and then-Senate President John “Jack” Kibbie supported an early draft of the bill because “[t]here’s viruses that can put these producers out of business, whether it’s cattle, hogs or poultry.” As to reputational harms, former Senator Tom Rielly commented on a draft version of the bill: “What we’re aiming at is stopping these groups that go out and gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.”

It's surprising the real reason is named, even if the phrase -- "harms that accompany investigative reporting" -- is polluted by spin. The rest is disingenuous gibberish. Keeping employees "forthright" was never the point. Actual non-activist employees weren't prevented from lying about animal treatment practices. And the easiest way for the ag industry to fight a negative reputation would be to end the practices that give it a "bad name." Since that clearly wasn't going to happen, captured regulators decided to poke holes in the First Amendment. The court is here to close those holes and send legislators and their favorite lobbyists back to the drawing board.

The court says that even if it buys the government's arguments for the enactment of the law, it's stated reasons (which ignore the desired side effect of preventing the public from learning about the industry producing its food) aren't enough to justify this intrusion on First Amendment rights.

However, accepting Defendants’ argument that property and biosecurity are the state’s actual interests protected by § 717A.3A, the Court is persuaded these interests are important; but they are not compelling in the First Amendment sense. Herbert, 263 F. Supp. 3d at 1211-12 (assuming, despite record evidence to the contrary, that the state’s proffered interests— protection from spread of disease; injury to animals and workers caused by unauthorized actions—were the actual reasons for enacting the statute, but finding that the harms targeted were “entirely speculative,” and therefore could not be considered compelling); Otter, 118 F. Supp. 3d at 1207-08 (finding the state’s “interest in protecting personal privacy and private property” to be important, but not compelling; furthermore, “even if the [s]tate’s interest in protecting the privacy and property of agricultural facilities was ‘compelling’ in the First Amendment sense, [the statute] [wa]s not narrowly drawn to serve those interests”).

You'd think a state government so concerned about "protecting" favored industries would have done a little more on the evidence-gathering front. Then again, maybe it did but (surprise!) couldn't find anything to justify its legislative stance. Either way, the end result is the same: the First Amendment isn't subject to legislators' fantasies.

Defendants have produced no evidence that the prohibitions of § 717A.3A are actually necessary to protect perceived harms to property and biosecurity.

[...]

Defendants have made no record as to how biosecurity is threatened by a person making a false statement to get access to, or employment in, an agricultural production facility. Nor, in the absence of any record to the contrary, will the Court assume that biological harm turns on a human vector making a false statement unrelated to such harm in order to gain access to the facility. Protecting biosecurity is therefore purely speculative and cannot constitute a compelling state interest.

Furthermore, the stated interests are already protected by laws against trespassing and possessing pathogens with the intent to harm the health of farm animals or crops. The state argued the trespassing law doesn't seem to be deterring trespassers, but the court counters this by asking why the state thinks using the First Amendment as a doormat will be a more effective deterrent to trespassing.

The court speculates there may be a way to craft a law that deters what the state says it wants to deter, as well as the things the state won't admit it wants to deter, but this ain't it chief.

To the extent that a violation of § 717A.3A can be likened to the common law breach of a duty of loyalty, to criminalize such a breach goes far beyond what is necessary to protect the state’s interests and allows for expansive prosecution.

No matter what your stated reasons are for implementing a law, if the actual target is the act of journalism -- gathering facts and reporting on observations -- you're going to run into Constitutional challenges. And if you're not honest about what you're really targeting, your law won't survive judicial examination.

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Filed Under: 1st amendment, ag gag, free speech, iowa

24 Comments

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Gary (profile), 14 Jan 2019 @ 11:28am

Oversight
We don't need no damn guberment telling us how to raise our food. Liberty! The market shall correct all sins!! All regulations bad (for rampant capitalism at least).

https://en.wikipedia.org/wiki/The_Jungle
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Anonymous Coward, 14 Jan 2019 @ 11:32am

Re: Oversight
The sad thing is that is an accurate assessment of some of the more rabid free market nutters.
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Sheik Myhead, 14 Jan 2019 @ 11:33am

Orwells that ends well
It's almost as if people WANT to have ye goode olde British "what people can say and who can say it" laws again. Despite the spilling of blood by others in an attempt to extricate themselves from the stupidity of many of those laws, SOME people seem to think those laws were, and still are pretty neat. It's like a slow playing out of Animal Farm and 1984, except it's not in the UK. First those laws are bad, now, maybe not quite so bad and looking better all the time.

Maybe the state needs to come up with some neat "defarmation" laws.
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Anonymous Coward, 14 Jan 2019 @ 11:49am

The thing with laws or anything else blatantly unconstitutional or fact-free is that the climate has become such that no one feels like they have to try to even lie well anymore. It works well enough of the time. Good thing that calling out the bullshit still works occasionally.
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Anonymous Coward, 14 Jan 2019 @ 12:18pm

kosher slaughterhouses
The most appalling cruel of any agriculture business would have to be kosher slaughterhouses, which ritually require that animals die a slow painful death. No wonder then that many kosher slaughterhouses tend to hire illegal aliens exclusively, since they're perceived, for obvious reasons, as being much less likely to rat them out to authorities or animal rights groups. (Trump pardonee Sholom Rubashkin obviously had an addition motivation, being a greedy all-around crook whose contempt was only outmatched by his chutzpah)
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Anonymous Coward, 14 Jan 2019 @ 12:18pm

Re:
There are no consequences to the person who puts out the unconstitutional law. So why not push out all of the crap they absolutely can?

They get to tell their base they tried. If it fails, the defense is paid by the taxpayer, not their pocket. There are no penalties with any sort of ethics board that can take action against the congressman. So it is a win-win no matter the result.
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UniKyrn (profile), 14 Jan 2019 @ 1:10pm

Streisand Effect: If you have to buy a law to keep people from seeing what you're doing, anybody who notices is going to look harder.
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Anonymous Coward, 14 Jan 2019 @ 1:26pm

Re: kosher slaughterhouses
[citation needed]
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Gary (profile), 14 Jan 2019 @ 1:39pm

Re: kosher slaughterhouses
Kosher and Halal slaughter involve slicing the throat with a knife. "Humane" slaughter means putting a steel bolt into the brain with a pneumatic device.

Really all about the same if done correctly. Both secular and religious slaughterhouses have the same problem - the people running the place don't want any problems to see the light of day. The AgGag laws are proof that secular practices are just as bad if not worse, since entire states closed ranks to prevent reporting.
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Anonymous Coward, 14 Jan 2019 @ 1:53pm

Re: Re: kosher slaughterhouses
Sorry, I should have clarified. I know how Kosher slaughter is done and agree with your general statements. Nothing will ever be painless and my understanding of the practice is that if done right, it is just as painless as the bolt method. Also, the videos I have seen are far from slow. Seconds until death.

I'm looking for the OP to show proof that they "tend to hire illegal aliens exclusively" over standard slaughterhouses.

Again, not looking for you to answer. Looking for the OP to provide proof of a very strong claim.
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Darkness Of Course (profile), 14 Jan 2019 @ 1:54pm

What if I lied about ...
Assume some individual inquiring about a job at an Iowa ag farm.

Now, the individual is just a person. A job seeker. But, falsely claims they are associated with some anti-ag group.

Would that lie be against their law?
Assuming they could magically avoid the 1st Amendment and this ruling, of course.
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steell (profile), 14 Jan 2019 @ 2:48pm

Re: kosher slaughterhouses
How can you bring yourself to post such garbage? As far as I can tell, every statement in your post is a deliberate lie.

For a non PETA propaganda source read https://oukosher.org/blog/news/setting-the-record-straight-on-kosher-slaughter/

The real PETA, "People for the Eating of Tasty Animals"
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David, 14 Jan 2019 @ 3:19pm

Oh come on.
Anyone willing to lie about his true motivations for butchering animals is just as likely to lie about whether he has been infected with cowpox. Before you know it, they'll cough on all the pigs and spread all their microvaxes. That stuff does not belong in food!
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ross, 14 Jan 2019 @ 4:03pm

Re: Re: unconstitutional law
Bingo

... so guess how many unconstitutional laws/regulations are now on the books (round it off to nearest ten-thousand #)
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Vic B (profile), 14 Jan 2019 @ 4:03pm

At the risk of sounding contrarian, I work in another industry, also subject to "green" groups that have made a living of finding ways to punish large employers who are committing abuses (at least in their eyes). These groups scrutinize our industry's often complex operations and when/if they find something that can be litigated, they send letters advising of their intention to litigate unless the company pays the group money (called administrative charges) and takes steps to fix the issue (which they frankly hope the company won't do so the can be fleeced again later). While I understand the responsibility that large and small employers have towards their employees, the environment, the safety of their product, their customers, and on and on... I'd argue some of these groups are like modern time robin hoods, taking from the rich to justify their existence wrapped in dubious moral/ethical blankets.
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Gary (profile), 14 Jan 2019 @ 4:08pm

Re: Re: Re: kosher slaughterhouses
AC, I didn't think otherwise. I was just expanding on the topic, not trying to contribute to the anti-semantic conspiracy posited by the green AC above.
I should have been clearer.
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Anonymous Coward, 14 Jan 2019 @ 5:22pm

Re: Oversight

The market shall correct all sins!!

By ensuring all participants bare the mark.

I don't think that's going to do what they think it will. Of course, they have a nasty habit of "Do as I say." So they probably don't care about them contradicting themselves under their own claims.

I wonder if they'd believe us if we told them what they were leading into the country "wrapped in the flag and carrying the cross"....
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That One Guy (profile), 14 Jan 2019 @ 8:01pm

Re:
they send letters advising of their intention to litigate unless the company pays the group money (called administrative charges) and takes steps to fix the issue (which they frankly hope the company won't do so the can be fleeced again later).

That does strike me as suspect, given the 'give us money to go away' half. If they were just saying 'fix your shit or we'll see you in court to make you' then assuming valid complaints I wouldn't really see a problem with it, as it accomplishes the goal of solving the problem with minimal hassle, but the fact that they expect others to foot their bill does kinda bring into question their motives.

Now, that said, barring some evidence that that sort of action is widespread and the norm, I'd chalk it up to people who have at best gotten a little too self-righteous and have fallen pray to Good Guy Syndrome('we're the Good Guys, therefore if we do it it's by definition Good'), if not outright corrupted, and would argue that even then laws like the one struct down here would still be a bad idea as overly broad on their impact on protected speech, not to mention blatantly dishonest in their stated justifications.
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Anonymous Coward, 14 Jan 2019 @ 8:11pm

Re: What if I lied about ...
They should be careful they don't become packaged product.. I would think!
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Anonymous Coward, 14 Jan 2019 @ 8:13pm

This country is really startiing to SUCK.
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Pixelation, 14 Jan 2019 @ 8:18pm

Too bad
All of the light shined on the situation is sure to grow more bacteria. Stupid Constitution!
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Anonymous Coward, 15 Jan 2019 @ 8:04am

Re: Oversight
Isn't this an example of massive government overreach creating an actual rights violation, though? What is your point here?
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OldMetalHead (profile), 15 Jan 2019 @ 8:55am

Hasn't AG Heard of a NDA?
Couldn't the ag industry implement non-disclosure agreements as part of their hiring process? It seems to work pretty good for tech. At the very least they would be able to sue if an ex-employee exposed their internal processes.
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abner shem, 17 Jan 2019 @ 3:01am

www.office.com/setup
Thanks for taking the time to discuss and share this with us, I for one feel strongly about it and really enjoyed learning more about this topic. I can see that you possess a degree of expertise on this subject.
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