Will Zombie Ag-Gag Laws Ever Really Die?

Two federal courts have split over the constitutionality of ag-gag laws, increasing the possibility that the Supreme Court will intervene on First Amendment issues. Photo: U.S. Department of Agriculture/Preston Keres (Public domain).

WatchDog Opinion: Will Zombie Ag-Gag Laws Ever Really Die?

By Joseph A. Davis

There are a lot of good things about U.S. agriculture, but hiding the truth from the public is not one of them.

“Ag-gag” laws, kind of like zombies, are still a concern for environmental journalists. Recent news suggests they are not dead, but lurching menacingly toward the First Amendment.

Ag-gag is a nickname for state laws that make it illegal to mount undercover investigations of practices and conditions in industrial animal agriculture operations. Animal welfare activists have come up with some appalling videos of cruelty and crowding. So have journalists, some of whom started with the reports from activists.

The laws take various approaches — but many make it illegal to use deception to gain employment at factory farms. Both activists and journalists have done this. Journalists may simply not disclose that they are journalists.

Think what you will about the ethics of undercover journalism (a la Nellie Bly or Upton Sinclair), the laws still infringe on reporters’ ability to gather news and thus violate the First Amendment.

 

Circuit court split

But that’s not what two three-judge panels of the 8th U.S. Circuit Court of Appeals held in January, when they ruled the latest Iowa ag-gag law did not violate the First Amendment.

You may remember that Iowa is the nation’s top pork-producing state. You may not remember that Iowa had tried three times before to enact ag-gag laws and had them struck down because they violated the First Amendment. Will the fourth time be the charm?

So what’s the deal? Unconstitutional or not? Good thing we have the U.S. Supreme Court to settle that for us. (We are being sardonic.)

The Supreme Court looked like it had ended the argument when, back in October 2023, it declined to review a 4th Circuit Court decision striking down a North Carolina ag-gag law as unconstitutional. When the Supreme Court declines to review (denies certiorari for) an appeals court decision, that is usually taken to uphold the lower court and to end the matter.

 

Two circuit courts have come up

with different positions, tempting

the Supreme Court to resolve the

ag-gag question once and for all.

 

But now the 8th Circuit and 4th Circuit have come up with different positions — which presents a stronger temptation for the Supreme Court to resolve the ag-gag question once and for all.

 

Opposition reveals fault lines

We don’t know what will happen or what the Supreme Court might do. We do know that states like Iowa have experimented with different approaches to ag-gag restrictions in hopes that one of them will hold up.

It is one thing to outlaw deception on job applications; it is another to outlaw photography while trespassing. What if you do it with drones?

The First Amendment is the First Amendment. Farmers want to raise pigs. But nothing is simple: Opposition to ag-gag laws coincides with a number of political agendas. Many of the exposés are done by anti-cruelty groups like PETA, which have their own agendas. Or workers’ rights groups. Or militant vegetarians.

Responsible journalists will want to sort these things out transparently — while doing the story anyway.

 

Before journalists take on

this subject, they may want to

look at the nationwide picture or

translate it for another state.

 

Before journalists take on this subject, they may want to look at the nationwide picture or translate it for another state. Ag-gag laws have been struck down as unconstitutional in at least five of them.

Several groups (all with a stake) keep track of the state-by-state, but the situation is still changing, so check up. Whatever the latest count, there are still some state ag-gag laws on the books that haven’t been struck down. Look at Montana, North Dakota, Missouri or Alabama.

One state map is from the Animal Legal Defense Fund; it shows where bills have passed, where they have been defeated, where laws have been struck down and where suits are still pending. A second is from the American Society for Prevention of Cruelty to Animals. Another is Sentient Media’s nongraphic rundown.

 

What about other coverage bans?

Journalists — not just environmental journalists but all journalists — should think about what other coverage might be threatened if ag-gag laws succeed.

Some states are already on the way to applying whistleblower bans to other private businesses, such as hospitals, nursing homes and schools. Or, just imagine a possible Trump presidency. Would he or some future president revive (or misuse) the Animal Enterprise Terrorism Act of 2006?

Environmental journalists in particular, though, have several reasons to worry about zombie ag-gag laws.

Set animal cruelty aside. Bacon, too. What about epidemic diseases like swine flu or avian flu? What about food safety or contamination from unsanitary conditions? What about the safety of agricultural workers? What about air or water pollution from factory farms? What about wind farms or biogas?

When anybody works this hard to obscure information, we always want to ask what they’re trying to hide.

[Editor’s Note: Check out top agriculture stories from SEJournal.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

---

* From the weekly news magazine SEJournal Online, Vol. 9, No. 17. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.