Food and Agriculture
Reporting has been against the law

Agriculture's 'gag' rule has been ruled unconstitutional in Idaho

Burgess COMMENTARY

Peter Burgess

(Photo: Sven Hagolani/Getty Images)

After years of animal rights activists saying the spate of state laws outlawing undercover investigations of farming operations—so-called ag-gag laws—violate free speech rights, a federal judge has ruled the very same.

On Monday, U.S. Chief Judge B. Lynn Winmill of the District of Idaho said the state’s 2014 law—which came in response to an exposé video produced by the animal rights group Mercy for Animals that went inside an Idaho dairy farm—both violated the First Amendment and selectively targeted critics of the industry. It’s the first time such a law has been struck down on constitutional grounds.

In his summary opinion, the judge wrote that “the effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.'

'The facts show the state’s purpose in enacting the statute was to protect industrial animal agriculture by silencing its critics,' he wrote.

It’s the kind of language you might find in an op-ed from the head of an animal rights group. The judge went on to reference Upton Sinclair’s The Jungle, the 1906 novel that exposed harsh conditions in the meatpacking industry and led to widespread reforms in Chicago’s stockyards. To research the book, Sinclair spent seven weeks working in slaughterhouses.

“The reference to Upton Sinclair and The Jungle is significant,” said Matthew Liebman, one of the Animal League Defense Fund’s lead attorneys on the case. “As the judge noticed, if this legislation had been in place when Sinclair lied about who he was to get a job and write The Jungle, he would have been a criminal.”

To be fair to Sinclair, a dyed-red-in-the-wool socialist, he was more concerned with the workers than with food safety and animal welfare, the issues that became the book’s legacy.

Were the book set in Idaho in 2014, the author could have been convicted on misdemeanor charges punishable by a maximum sentence of one year in jail, a $5,000 fine, and restitution. Under the law, it was illegal to enter a facility or obtain records “by force, threat, misrepresentation or trespass”; acquire a job “with the intent to cause economic or other injury to the facility’s operations”; make an unauthorized audio or video recording; or damage facilities.

But as far as ag industry advocate Russ Hendricks is concerned, any contemporaries of Sinclair should be treated as criminals if they lie or misrepresent themselves to gain access to a farming facility.

When asked what he thought of the argument that the legislation violated the First Amendment, Hendricks, the director of government affairs for the Farm Bureau’s Idaho chapter, quickly said no and, after a pause, repeated himself.

“That argument we found wholly unpersuasive,” he continued. “That’s a misunderstanding of the First Amendment. Certainly anybody has a right to write about anything they want, to say anything they want—but they can’t trespass or misrepresent themselves to gain information. That is not part of the First Amendment.”

If activists do not have permission to record audio or video on a farm, “they have violated that person’s property rights,” he said.

That’s one of the primary arguments made in favor of what those in the agriculture industry call farm protection laws. But as activists and lawyers like Liebman point out, there are already numerous laws on the books that protect the property rights of farm owners. And the courts have lent support to that notion, it seems, by throwing out ag-gag charges while pursuing charges for violating long-standing criminal trespass statutes.

There are wiretapping laws, such as California’s wiretapping law, that require two-party consent to record a conversation, which protects individuals’ right to privacy. Then there are issues such as filming the police, which has been deemed constitutional, even if officers routinely tell people they cannot record their actions. The difference is a matter of public interest: What the police do is a matter of public importance, according to the law, while your private phone conversations are not. So when it comes to the agriculture industry, the question is whether or not what happens within private facilities is a matter of public importance—and in this instance, Willmill ruled that it is of “great public importance.”

Idaho, after all, is the country’s third-largest dairy state, and it supplies milk for hugely popular brands like Chobani—whether you’re aware of it or not, you have probably consumed milk or other dairy products that originated in the state.

The problem farmers face with a buying public that is increasingly removed from rural, agricultural life is that raising livestock isn’t always pretty, even when it’s done in what has been accepted as an ethical manner. Chobani, for example, sets a high bar for animal welfare and has transitioned to non-GMO feed for its cattle—consumer-minded decisions that change the way Idaho dairymen must run their farms. Still, despite the company’s efforts to take the higher road when it comes to raising livestock, realizing that the cows that provide the milk for Chobani’s morning Greek yogurt are largely kept in barns and latched on to milking machines instead of frolicking through pastoral rolling hills could be enough to turn off some buyers.

That legal status quo is far different from the kind of animal abuse depicted in the Mercy for Animals video that spurred the legislation, which led to criminal charges. But The Jungle, after all, almost single-handedly ruined the lard industry with its fictitious depiction of workers falling into the vats of boiling pig fat where Durham’s Pure Leaf Lard was made. It’s part of the reason why Temple Grandin, who designs humane slaughterhouse facilities, has called on the industry to embrace transparency.

“We also have to remember everybody’s got one of these,” she said at a Farm Bureau conference in San Diego earlier this year. “You can’t get away from video cameras anymore. So what we need to be doing is changing some practices and opening up the doors.”

And with the Idaho victory and a similar case against the Utah law in the discover phase, Liebman believes animal rights groups have the momentum. “I do think that the tide is turning against ag-gag,” Liebman said. Although one new state law was passed in North Carolina earlier this year, “we’ve defeated these bills in legislatures across the country, but that’s the first in the last couple of years, and the majority of the bills that are being introduced are being defeated.”

“I think this whole issue is opening up the public’s eyes to the fact the meat industry has a whole lot to hide,” he added.

RELATED The Fight for the Image: Who Gets to Define the Meat Industry?

21 Comments Sort by Top Add a comment...

Larry I. Lund We are not talking about farmers here. A corporation cannot by defination be a farmer. These are corporate agricultural producers in the activity of mass producing consumable products. Like · Reply · 23 · 18 hrs

Lissa R Carre · Whitehorse, Yukon Territory True, Larry, but keep in mind that often individual farmers can be in situations where they have functionally become share croppers to these industrial corporations, and in some ways, are victimized in the process of making mind boggling profits, which in the end, they as farmers, see little to no 'share' of. I'm not entirely sure whether what I'm saying aligns with or does not align with what you intended to say, but I believe that it's important to bear in mind that there are still individuals farmers involved, just not, perhaps, in the role that is still in the imaginations of many consumers, an image that was rarely realistic even in bygone decades, but becomes increasingly idealistic and increasingly disconnected to reality as industry farming ploughs small farms and farmers under their grinding corporate machinery. Like · Reply · 5 · 17 hrs

Larry I. Lund Lissa R Carre I understand fully what you are saying. I have tried many times to talk people out of becoming share croppers. It is another form of slavery. There is always a better way than to bend down to that level. I have seen many fails and not a single success of people I grew up with going for the big bucks. Eventually their debt, financial and spiritual consumed them. In the mid 70's only 2% of our country were farmers. It is likely much less now. The corporate entiteis do not count in my book. When what you produce is toxic it is not acceptable. I sold the family farm when I realized what was going on there with the tennant. People feel locked in to the USDA farm programs. They are afraid to say no. Chemical farming is relativly easy compared to traditonal organic food production. You don't have to actually market your produce. Take it to the grain elevators and get your 2 cents worth and a pat on the head. Same way with livestock. and poultry. Prices are all fixed by men in suits who have never even been in a barn. There is a underlying policy in government. Keep the farmers poor and the country thrives. It got so big for a while, that greedy bankers were drooling. Then corporations came along. It was down hill from there. Forgive me for rambling on. Felt good to get that off my chest. Forever the optimist, I have hope for a much different picture when people start to wake up to the disease causing food we are paying for. The lies of corporations cannot stand much longer. Like · Reply · 18 · 17 hrs

Lissa R Carre · Whitehorse, Yukon Territory Larry I. Lund I truly hope you are correct. I must say that I far prefer going to our tiny little Farmer's Market here in the Yukon - where it really is a farmer's market. The Yukon is simply too small for corporations to even bother with our little weekly affair, and the Yukon is a tough place to grow a lot of crops. That being said, it's also a place that seems to invite tough survivors. One of my favourite farmers there is a gentleman - and he is truly both a gentleman and a gentle man - who is blind, but for years farmed on his own, getting around his little farm on a bike using a system of guide ropes. He is now married and he and his wife farm hardy greens, gather local berries in the wild and farm tough little goats for milk (I had met them at the Farmer's Market but I learned more about them when I took a cheese making course with their assistant at the local cottage. Their haloumi is delectable!) Theirs is what I think of as 'artisan' farming. If I want goat's milk or cheese for instance, I'm far better of asking a week or two in advance, and asking for a reasonable / moderate amount. They can only make so much - their goats eat free range and they don't force them to breed out of season or all year round. They keep a small herd and each animal is known to the farmers. During the off season, you cannot get either milk or cheese (or yogurt, which they also produce, as well as a lovely mozzarella). If you want to have it all year long, you buy a bit extra when you can and freeze it. The billies, while it's sad in some ways, split - some kept to sire the next generation (as needed) some sold to others starting small herds, some for their own meat for the season. They know their animals as individuals and while on one hand they mourn the loss of an animal, they also ensure that every animal experiences good quality of life while it is alive, that animals who are going to be consumed for meat are killed swiftly and with as little stress as possible, and that there are as few extra births as possible, and that those animals who are killed for meat are not wasted in any way.

We have gone so far from even just the practice of going to the butcher and asking a day or so ahead of time for what we want. The post war era and the relief and celebration of victory and the economic plenty that came after it, as well as the infatuation with modern technology soon enabled a sense of entitlement. When we go to the store, it's not just that we want milk, or eggs, or chicken, or tomatoes. We expect there to be such a wealth of choice - 6 kinds of heirloom tomatoes, in and out of season, we want just certain cuts of meat, and we want to choose which of 30 trays of pork chops will be just perfect. We have come to equate 'Best Before Dates' with 'OMG! It will KILL ME!' deadlines and many people don't even know the difference between food that is fine and food that is beginning to go off. People often don't have any idea, for instance, how old the apples in the grocery store are. I know I was suprised, when I asked a colleague who has tiny orchard (this was when I lived in Southern Ontario) with her husband and his family, why her apples of the same varieties tasted sooooo much better than the same type from the store. She explained that apples in the store are often / can be up to a year old. Suddenly, all of the Laura Ingalls books I read as a kid made more sense, when I thought about how I had read about people storing and preserving food even things I didn't think of as being able to last months. That's because by the time I get them, they are near the end of their viable span! Like · Reply · 5 · 14 hrs

Lissa R Carre · Whitehorse, Yukon Territory I had a gut kick experience once. I had observed a young man, obviously not from Hamilton, where I lived at the time, who was evidently a student by his backpack and armful of binders. I noticed that he was on the wrong bus to be headed towards the university - the binders were from there, and the bus we were on went to the university on the return trip of it's route but that would take him almost two hours. Some halting conversation got it worked out that he was from Korea and studying at the University. I offered to show him the way to the correct version of the bus route. The way Hamilton is laid out in a grid of one way streets, the easiest way to get him to the right stop was to walk through the mall downtown and that mall happens to contain a massive farmer's market. I didn't think twice as I walked in, propping the door open behind me so that he could follow. I continued to walk quickly through the market, but realized suddenly that I'd lost my lost boy. I turned to figure out where he'd gone and found him standing in the middle of one of the wide aisles, stock still, with tears streaming down his face. Alarmed, I asked what was wrong. Through a lot of clarification, repetition and very formal English, he explained that he had never seen that much food in one place. He was from South Korea, so it wasn't that he was escaping a tyrannical regime. But he was from a small town, and the markets where he lived simply didn't have that much food, ever, in one place. If you arrived at the market and wanted a melon and the 10 melons the vendor had for sale that morning were gone, well, you didn't get a melon that day. On the one hand, it seemed very wonderful to him, but it also made him sad to think about how many people he knew that barely had enough.

I've never forgotten that interaction. The more I realize how our Western notions of entitement to such vast arrays of 24 hour choice in a food system that most of us are entirely out of touch with (since most of us do not grow the majority of our own food, or raise it, or hunt it) have fed - pun intended - a dysfunctional system of corporate agri-greed. It is the market demand of customers that has put this in motion. While I have no issue with people who choose not to eat meat for whatever reason, I wonder sometimes if they realize that the corporations filling the resulting market demand with industry farming products are not generally doing a service to the environment, either; deforestation that destroys wild habitat to grow massive soy crops etc. kills animals, too. Like · Reply · 3 · 14 hrs

Lissa R Carre · Whitehorse, Yukon Territory I wonder when we are going to learn that we need to do more than stop eating all of one kind of food and use our power of consumer choice, including investing our money - because it is more expensive - in farmers who farm ethcially, on a small scale, in buying from farmer's markets that we demand stay in community hands, in supporting local businesses, in buying in co-ops when we can. I'm not going to lie and say I'm some sort of model citizen. I try to make the best choices I can when I can. As I say, in the Yukon, sometimes, my choices are limited. That being said, we have a vibrant comm...See More Like · Reply · 2 · 14 hrs

Larry I. Lund Lissa R Carre I am a little jealous of your charmmed life in the great white north. Not so sure I am hardy enough to live up there any more. I grew up only a couple hours away from the Ingalls South Dakota home in west central MN. I have shoveled my quota of snow for this lifetime. I grow as much as I can in compost that I make and I use no chemicals of any kind. 40 days in of rain this spring delayed my tomatoes to the point of no harvest. Once it gets over 85 degrees F 'mato's won't ripen. Local critters were getting more than their fair share too. I really don't mind that so much. I just need to plant more raised beds. My goal is to have more than I can use and spend saturday mornings at the local farmers market selling the rest at less than store prices...just because I can. Like · Reply · 3 · 10 hrs

Gary Hild · Navasota, Texas Yes, the corporate entities that are mass producing food for consumption must be transparent unlike what the current US president promised in his long forgotten pseach where he also stated that we needed to protect our whistleblowers as they are important for discovering any wrong-doing in high places , but we know where that speech ended up,in the waste bin of political lies never to be mentioned again and so that left me with the option of voting for Bernie Sanders as he will make AMerica a much better place for the average person and not kiss the axxes of the wealthy corporations. Like · Reply · 3 · 16 hrs

Rita Cross · Lakeway, Texas Ag-Gag laws should be thrown out as they are illegal! Animal welfare laws and the 1st amendment are left out of these ridiculous laws! The AG industry wants to hide all of its cruelty to animals, pure and simple!!! Like · Reply · 3 · 17 hrs

Joy James Cruelty to farm animals, processes that create unsafe foods, processes that create unhealthy conditions for the workers and the public should never be allowed to escape detection. Whether it be a corporation or a farmer, no one should have the right to abuse any living being, risk public health, or our environment. Like · Reply · 2 · 7 hrs

Nelson Robison · Palm Beach Gardens Community High School In truth, the ideal should be farmer's markets and small Mom and Pop stores that carry staples, like rice, flour and other necessities. The other portion of any market should be dedicated to fresh produce and other food locally grown. When we have this ideal America will again not bend to the corporate forces of avarice and isolationism. Like · Reply · 2 · 11 hrs

Patty Carey Unfortunately, the public has aready given away a lot of the power we have to protect ourselves from the bottomless greed of super rich and powerful corporations. There are ways to take it back: the first being to take our business to the places we trust and away from the ones we don't. Second is to take back the power of the ballot box and elect legislators who put the welfare of their constituents above corporate profit. Every industry should be subject to regulations which are actually enforced and the only way to do that is to record how the product is made. Nobody seems to have any problem demanding that Iran's nuclear facilities be regularly inspected for compliance, but a lot of people seem unable to grasp that that is the only way to ensure compliance here at home as well. Like · Reply · 2 · 14 hrs

Larry I. Lund Great point. Look around, is there anyone more adulter than you? Maybe then it is time to take part in those things which sustain our life. One pkg of swiss chard seed-$2.99. I harvested 18 lbs. Multiply this times $5 per lb...no labor involved once the soil has been properly tended to and the seeds planted. Watering just puts you in the fresh air in the morning. It is good for you. Not a chore. That bed is 3 ft wide and 12 ft long. Carrots, onion, lettuce and chard. Fall planting is comming up. Several hundred dollars of produce already. It makes Cents to do this. Like · Reply · 2 · 10 hrs

William Reamy · Principal Engineer at Stack Hawk Environmental Services Perhaps misrepresenting oneself to gain access to a facility to take pictures is illegal, but what if a real employee wanted to blow the whistle on the industry? Didn't the Ag-Gag rule prevent them from doing that? If so, it's about time a judge ruled the proper way. Like · Reply · 2 · 16 hrs

Larry I. Lund The fine line in this is that the produce is for public consumption. There are actual agricultural inspectors who have the right to inspect methods. It would seem to get a usda stamp of approval there is a little under the table cash flowing. The ball has been dropped for 'corporate welfare'. Those who are doing the right thing do not need secrecy or closed doors. Criminals and politicians seem to need this stuff. Like · Reply · 10 hrs

Pat Duran It will be interestng to see if this decision is upheld by higher courts. The best option is for consumers to 'vote with their dollars' and refuse to buy any ag products from farms not operated in a humane manner. Like · Reply · 2 · 16 hrs

Peggy Dirsa · Emerson College There is no way for the average consumer to know or learn what is or isn't ..or what products are from places that are humane or inhumane. Like · Reply · 15 hrs

Larry I. Lund Peggy Dirsa You pretty much have to consider that all food in a traditional grocery store is not pristine. If you are really worried about this, find local growers, Or grow your own. There are not any other choices. Like · Reply · 1 · 10 hrs

Christina Ellen Manis What ever it takes to ensure our foods are labeled GMO or NO GMO. Activists will keep coming. Buyers will continue to demand cruelty free food and seek a better world for human and animal. Cruel tactics cannot be hidden by gag order. GMO food will rot on the shelves. We are in a time of change and we want our farms including large opearatations that go beyond a 'farm' clean safe humane and without tainted chemicals and anitbiotics. If they have nothing to hide we would not be having this discussion. Due to and IDF my body cannot ingest any meats with hormones or antibiotics. Eggs taste completely different from organic birds. Try to hide it matters not. The truth will be reveiled. Like · Reply · 6 hrs

Marsha Bronfman Hahn · Chief Executive Officer at Retired If there were nothing to hide they wouldn't care about wo sees what. Nobody wants to see what happens in slaughter houses. They are dirty, dangerous places Like · Reply · 1 hr

Sandra Garratt · Design Director at SG Design LLC Larry Lund is totally correct, these are not real farmers in any way at all, they are large AG corporations that produce products that require livestock as their raw material....their methods are deplorable for the animals as well as the workers, who are often here illegally (so much for E-Verify and legit legal business practices), they present large public health hazzards to the environment and their products are not quality or fit for consumption. If they were running clean legit businesses they would proudly open their doors (look at Perdue Chickens as an improved poltry example) but the reality is this is done in secret away from prying eyes and any workers who whistleblow are at risk. Don't be naive and believe their PR or let them bully the public or intimadate & threaten inspectors.

Marsha Bronfman Hahn · Chief Executive Officer at Retired If there were nothing to hide they wouldn't care about wo sees what. Nobody wants to see what happens in slaughter houses. They are dirty, dangerous places Like · Reply · 1 hr

Sandra Garratt · Design Director at SG Design LLC Larry Lund is totally correct, these are not real farmers in any way at all, they are large AG corporations that produce products that require livestock as their raw material....their methods are deplorable for the animals as well as the workers, who are often here illegally (so much for E-Verify and legit legal business practices), they present large public health hazzards to the environment and their products are not quality or fit for consumption. If they were running clean legit businesses they would proudly open their doors (look at Perdue Chickens as an improved poltry example) but the reality is this is done in secret away from prying eyes and any workers who whistleblow are at risk. Don't be naive and believe their PR or let them bully the public or intimadate & threaten inspectors. Like · Reply · 6 hrs

Donna Selquist · Port Saint Lucie, Florida This is a tremendous victory! I sure hope it turns the tide in waking up the public to the suffering and waste that puts food on our tables. Like · Reply · 16 hrs

Allan Richardson · Marietta, Georgia It should not be necessary for activists to lie, trespass, or commit fraud to find out and relay to the public what happens on a farm. It should be possible for any citizen to get a 'citizen's subpoena' at any time and show up at a gate, accompanied by a sheriff's deputy, demanding immediate access to film what is happening or to access other records. In other words, there should be an ag-NO-gag law, under which the refusal to turn over 'private' information which could affect the health of the public would be treated as contempt of court. Like · Reply · 27 mins

Rafael Zambrana · Tucson, Arizona YOU HAVE TO WATCH THE EXCELLENT DOCUMENTARY 'COWSPIRACY The Sustainability Secret' http://www.cowspiracy.com/ it shows the AgriBeef industry as a worse polluter than the Oil industry. A real eye-opener!!! Even if we stopped all the use of oil in the world, still humans would have to contend with the Largest poluter they support by eating stakes and harmburgers. Like · Reply · 14 hrs

Jennie Lee · Works at I AM HAPPILY RETIRED Ag gag laws have only one purpose: to keep the public in the dark; to hide the truth. A democracy cannot prosper with an uninformed public. For this reason, I have always felt that they were pretty much treasonous! We're not talking about national security, or secret proprietary info, like the formula for Coke! If a business is afraid for the truth to be known, they need to shape up. Like · Reply · 1 · 3 hrs

Truman W. Grandey · Volunteer English Tutor at Hartley Elementary School If activists do not have permission to record audio or video on a farm, “they have violated that person’s property rights,” he said. If a corporation can be a person, so can a farm, I guess. Like · Reply · 1 · 5 hrs

Maria Occttaviani-Rivera IF THE FARMERS ARE MAKING TOO MUCH MILK(ANOTHER ARTICLE ABOUT FARMER MILK PRACTICE OF THROWING OUT OVER PRODUCTION)LET THE COWS WALK ON THE FARM-BY THE TIME YOU PUT THEM BACK ON THE MACHINES YOU DID NOT MAKE TOO MUCH MILK AND YOU CAN KEEP THE PRICE UP!! Like · Reply · 1 · 17 hrs

Jeff Biss · Northern Illinois University I love it when I'm correct and this is one of those times. These gag laws are indeed unconstitutional. Also, no one has the right to harm, especially to hide the harm as these laws do. BTW: Meat is not required to sustain human life or health, so we, as moral beings, have the obligation to not eat meat and end the meat industry altogether, for the benefit of the victims. Meat is indeed murder. Like · Reply · 5 hrs

Larry Church One ag-gag law is too many. Coroprations are inherantly greedy for they must keep making higher profits to feed the shareholders. If they are alowed to opperate in complete secret then short cuts will be taken even the use of temperary foreign workes at lower wages. Perhaps even endentured foreign workers (modern slavery). Hyopthetical yes but in some countries in the world it is reality. Behind closed doors and with laws to protect against prying eyes anything can and will happen. Openess is the only way to protect the worker, the animals and the food. Like · Reply · 1 hr

Roy Murray · Toronto, Ontario Once you've sorted out the First Amendment, start working on the Second. Like · Reply · 3 hrs