Animal Agriculture’s security requirements have only grown in recent years. Yet the legal strategy for security has largely come up short because the law put First Amendment rights over the security needs of farms and ranches
This reality has been a drawn-out affair. Back in the day, animal activist organizations all seemed to be hiring operatives who were skilled at getting themselves hired by animal agriculture. Once on the inside, the operatives would record any real or perceived animal cruelty.
If state or local authorities took it seriously, animal cruelty charges could put serious hurt to a herd or brand, and usually, the operative’s work also made animal agriculture look pretty stupid.
Around 2010, animal agriculture began to strike back by obtaining what became known as “ag-gag” laws. In the beginning, these were clumsy additions to state criminal laws. The only one that ever involved an arrest, which was hastily dropped, involved a city taking an animal activist into custody for taking pictures from entirely public property.
That arrest was based on a law that was among the first struck down for constitutional concerns and caused animal agriculture to shift its security concerns to civil law strategies. The civil law approach was prominent in North Carolina’s “ag-gag” law. However, as it related to newsgathering activity, it was also found largely unconstitutional.
This litigation has now gone on for more than a decade in both district and circuit courts. No Supreme Court review has occurred. The one powerful force that has carried the day is the legal expertise that animal activists are able to deploy. One state assistant assistant attorney general after another has been out-lawyered.
I started out with the simple thought that it’s time for animal agriculture to end the “ag-gag” legislation era. Technology costs for security have dropped dramatically in recent years, and some Artificial Intelligence devices hold real promise for keeping unsecured people out. And the current outbreaks of avian flu are security lessons in progress.
In Idaho, Iowa, Kansas, North Carolina, Utah and Wyoming the ag-gag laws are swiss cheese with enough of their parts shot full of holes by the courts to be ineffective. It means the ag-gag wars are over, animal agriculture has lost and it is time to accept that fact and move on to non-law options that will work.
It is true that some of these “ag-gag” cases were real head-scratchers. The idea that multiple federal judges are okay with someone lying on a job application to get a job on a farm or ranch is not something I ever thought might be covered by the First Amendment.
If someone were to lie on a job application for some federal job, I somehow doubt the First Amendment would provide enough cover to keep that applicant out of federal prison.
My belief that the “ag-gag” era is over is not shared by all. Alabama, Missouri, Montana, and North Dakota are among the states with “ag-gag” provisions that remain active and are not currently being challenged. That’s according to a new report by Husch Blackwell, a law firm with offices in 20 cities that represents the animal production industry.
That report says that when access to property is gained through deception or fraud, “criminal penalties should apply no matter the purported good intentions of the trespasser.” That’s sort of where we came in. The protection animal agriculture sought for more than a decade impedes news gathering activity protected by the First Amendment.
The “ag-gag” legislation adopted by 10 agricultural states has largely fallen to constitutional challenges from the more skilled legal works of animal activists. It’s over. Animal agriculture lost and it needs to move on.
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