Big Ag Gets Ag-Gag Envy, Helps Bring In 'Seed-Preemption' Laws Across The US

from the local-democracy,-who-needs-it? dept

As multiple Techdirt stories attest, farmers do love their "ag-gag" laws, which effectively make it illegal for activists to expose animal abuse in agricultural establishments -- although, strangely, farmers don't phrase it quite like that. Big Ag -- the giant seed and agricultural chemical companies such as Monsanto, Bayer, and DuPont -- seem to have decided they want something similar for seeds. As an article in Mother Jones, originally published by Food and Environment Reporting Network, reports, it looks like they are getting it:

With little notice, more than two dozen state legislatures have passed "seed-preemption laws" designed to block counties and cities from adopting their own rules on the use of seeds, including bans on GMOs. Opponents say that there's nothing more fundamental than a seed, and that now, in many parts of the country, decisions about what can be grown have been taken out of local control and put solely in the hands of the state.

Supporters of the move claim that a system of local seed rules would be complicated to navigate. That's a fair point, but it's hard to believe Big Ag really cares about farmers that much. Some of the new laws go well beyond seeds:

Language in the Texas version of the bill preempts not only local laws that affect seeds but also local laws that deal with "cultivating plants grown from seed.” In theory, that could extend to almost anything: what kinds of manure or fertilizer can be used, or whether a county can limit irrigation during a drought, says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance. Along with other activists, her organization was able to force an amendment to the Texas bill guaranteeing the right to impose local water restrictions. Still, the law's wording remains uncomfortably open to interpretation, she says.

You would have thought that farmers would welcome the ability to shape local agricultural laws according to local needs and local factors like weather, water and soil. But apparently ag-gagging activists to stop them doing the same is much more important.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ag-gag, cities, farmers, local rights, seed preemption, seeds, states
Companies: bayer, dupont, monsanto

Anti-Whistleblower 'Ag-Gag' Law Ruled Unconstitutional

from the go-free-speech! dept

We've written a few times about the ridiculousness of so-called ag-gag laws, that prohibit photographing or videotaping farms (sometimes even from public land). These laws were pushed for heavily by large industrial farmers who were sick of animal rights advocates getting images and videos of the conditions in farms and slaughterhouses that were questionable. Whatever you might think of the practices of those advocates, banning taking photographs or videos seemed like a really questionable move -- which would have a chilling effect on whistleblowers of all kinds. It seemed like it had to be unconstitutional -- and a court in Idaho agrees, declaring that state's law unconstitutional.

The court does not mince words, noting that under this law, Upton Sinclair's The Jungle would likely have been illegal:

The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating expose of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act.... Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

The State responds that § 18-7042 is not designed to suppress speech critical of certain agricultural operations but instead is intended to protect private property and the privacy of agricultural facility owners. But, as the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern. Moreover, laws against trespass, fraud, theft, and defamation already exist. These types of laws serve the property and privacy interests the State professes to protect through the passage of § 18- 7042, but without infringing on free speech rights.

With this background and context, the Court finds that § 18-7042 violates the First Amendment right to free speech. In addition, the Court finds that § 18-7042 violates the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.

The ruling also highlights how the politicians behind this bill barely hid their desire to shut up those darn animal rights activists, who they sometimes referred to as "terrorists" in explaining why this bill was necessary.

A review of the legislative record in search of a legitimate purpose does nothing to help the State’s cause.... The overwhelming evidence gleaned from the legislative history indicates that § 18-7042 was intended to silence animal welfare activists, or other whistleblowers, who seek to publish speech critical of the agricultural production industry. Many legislators made their intent crystal clear by comparing animal rights activists to terrorists, persecutors, vigilantes, blackmailers, and invading marauders who swarm into foreign territory and destroy crops to starve foes into submission. Other legislators accused animal rights groups of being extreme activists who contrive issues solely to bring in donations or to purposely defame agricultural facilities.

As the Supreme Court has repeatedly said, “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything.” ... As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage of § 18-7042.

It also points out that, for all the talk of animal rights advocates "misrepresenting" things on farms, there's a perfectly good solution to that: counterspeech.

The State has not shown why counterspeech would not suffice to achieve its interest of protecting agricultural production facilities from interference by wrongful conduct.... If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, ... not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.

The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence....

The court also laughs off the idea that the bill was narrowly tailored or that this particular law was necessary. In fact, the court points out ridiculous things that are illegal under the law:

Indeed, § 18-7042 not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the State does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even if everything depicted on the video is true and accurate.... In other words, the statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.

And finally, with all the questionable reasons for this bill to exist, one of the least commented on is the fact that this is clearly the state picking industries to give special protections to -- and the court doesn't even let that point slide:

Likewise, the State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection from these crimes than other private businesses. The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

Of course, there are still seven other states with ag-gag laws on the books, and hopefully they're about to go down as well. There is still a decent chance that the state will appeal and waste more taxpayer money defending an unconstitutional bill that spits on the First Amendment, but it's difficult to see how the courts could come to any conclusion different than the one here by Judge Lynn Winmill.

Filed Under: activists, ag gag, ag-gag, farms, first amendment, idaho, upton sinclair, whistleblowers