“Ag Gag” Laws: Industry Trumps the First Amendment

“Ag Gag” Laws: Industry Trumps the First Amendment

By David Slade

As I wrote in a much longer article earlier this year, numerous 2012 legislative sessions across the country saw the introduction, and in two cases the passing, of bills that would criminalize acts of investigative journalism in the agriculture industry.  These controversial “ag gag” laws target a practice common within news reporting and animal rights activism circles: embedding oneself as a factory worker, getting footage of inhumane or unsanitary conditions, and then releasing the video or photographs to the public.  Iowa, for instance, passed House File 589 (“HF 589”), which created the offense of “agricultural production facility fraud.”  Broadly, the law criminalizes a party making misrepresentations in order to gain access to a farm or agricultural production facility (read: lying on a job application).  Utah passed a similar law, House Bill 187 (“HB 187”), which goes one step further and also prohibits making a recording of any type without the consent of the facility’s owner.  Both laws also provide penalties for parties who abet the proscribed acts, presumably all the way up to the news agency that runs the story or shows the video.  Bills worded similarly to HF 589 and HB 187 were introduced, but not passed, in Florida, Illinois, Indiana, Minnesota, Missouri, Nebraska, New York, and Tennessee.

Not only are these laws unsavory on both a gut and policy level, they also appear to run into serious constitutional problems, as the First Amendment’s guarantees of freedom of the press would seem to guard against this exact type of legislation.  The interesting wrinkle here is that laws like HF 589 and HB 187 don’t attack the finished work – the video played on network news or posted to a website, or the photographs compiled in an exposé article – but instead target the underlying acts of gathering the material for the news story, and this is a far murkier area in First Amendment law.

In terms of the former category – the finished product – First Amendment jurisprudence is fairly clear.  Supreme Court cases like New York Times Co. v. Sullivan, for instance, have held that media outlets can’t be sued, even where they print something that is untrue, except where they acted with “actual malice” (meaning that even if they get something wrong, they aren’t liable, unless they ran the incorrect information on purpose, with the intent to harm the injured party).  In that same opinion, the Court wrote that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”  Accordingly, any law or agent of the state attempting to rein in the ability of the press to print what it wants is going to have to leave “breathing room” for “speech that matters,” as the Court noted in Gertz v. Robert Welch, Inc.

The problem is that, again, the above cases contemplated finished, published products and involved claims that attacked that same product.  In the wake of opinions like Gertz and Sullivan (and scores of others that support the same propositions), lawyers have gotten creative and instead of attacking the media’s ability to publish the news, they’ve attacked the steps that the media take to gather the news in the first place.  Here, they’ve been surprisingly successful.

As discussed in more detail in the paper, in cases like Branzburg v. Hayes, Zurcher v. Stanford Daily, and Cohen v. Cowles Media Co., the Supreme Court began limiting the First Amendment protections for acts of news “gathering,” as opposed to publishing.  In Branzburg, for instance, the Court held that a reporter would have to submit to a grand jury subpoena, even where the information sought was the name of a confidential source.  Zurcher held that police officers, in possession of a valid warrant, may search a newspaper’s office, even where confidential information and work product is uncovered.  And Cowles held that a journalist could be sued by a former source for having broken a promise of confidentiality.  Contrasting the holdings in Cohen, Branzburg, and Zurcher with the holdings in cases like New York Times v. Sullivan, one discovers a tension between competing interests – the rights of the press to publish and the privacy rights of the subjects of investigative reporting – that borders on paradox: the press is afforded expansive protections for the article that has been published, but each of the steps taken along the way to publishing get almost no cover from the Bill of Rights.

The problem, however, is that attacking the methods amounts to attacking the end product.  Nowhere is this more evident than in a federal appellate court’s decision in Food Lion, Inc. v. Capital Cities/ABC, Inc.  In this 1999 case, the Fourth Circuit held that two reporters for ABC News, who had gone undercover in a grocery chain’s meat department to uncover unsanitary business practices, were not afforded the protection of the First Amendment in an ensuing lawsuit brought by the store.  Relying primarily on Cowles, the Court found that while expression of the press is typically beyond the power of state sanction, its behavior is in play for purposes of litigation.  Specifically, it looked to Cowles for the proposition that generally applicable laws (laws that affect everyone and not just the press) will not trigger enhanced scrutiny “simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”  And it appears to be in that spirit that laws such as HF 589 and HB 187 were drafted.

The immediate problem with the Fourth Circuit’s analysis in Food Lion, and with laws like HF 589 and HB 187, is that clearly their effects are more than “incidental” in the scheme of gathering and reporting the news.[1]  Arguably, these boutique laws came into existence for the very purpose of stopping reporting on factory farms dead in its tracks.  As one Utah legislator inelegantly put it, “we certainly don’t want some jack wagon coming in and taking pictures.”[2]

Effectively, then, these laws amount to state-sanctioned censorship of an entire area of speech, also known as a “prior restraint.”  In the seminal case of New York Times Co. v. United States (also known as the Pentagon Papers decision), the Supreme Court stated that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”  The Court went on to say that the government “carries a heavy burden of showing justification for the imposition of such a restraint.”  Such a burden cannot be met by the current crop of ag gag laws, as their lone purpose is to prevent the embarrassment of private industry through the documentation of abuses.

Ultimately, the public interest is best served by favoring transparency and protecting journalism that exposes issues directly related to public health and food supply safety.  Within the context of food safety and public health, it is almost impossible to overstate the importance of exposés conducted by investigative journalists.  In 1904, Upton Sinclair performed undercover work in Chicago’s meatpacking plants at the behest of the newspaper The Appeal to Reason.  His investigation yielded the novel The Jungle, a social realist depiction of abuses of animals, workers, hygiene, and consumer confidence that sent a shockwave through the American public.  The book prompted a federal investigation, which in turn led to the Meat Inspection Act and the Pure Food and Drugs Act of 1906, which in turn created the agency that would ultimately become the Food and Drug Administration.

This work, created over a century ago, serves as a reminder of the need for a vigilant press to uncover practices of the agricultural industry that put our food supply at risk.  Unfortunately, recent reports have revealed that bad actors in the meat and dairy industry do not appear to have meaningfully changed since Sinclair’s days.  An investigation conducted by the Humane Society of the United States uncovered horrendous conditions at a Pennsylvania-based Kreider Farms egg facility, including rodents on egg conveyor belts, rotting corpses in cages with live laying hens, eggs testing positive for salmonella, and ammonia levels so high that workers were forced to wear masks.  A similar Humane Society exposé of four Iowa egg farms identified similar conditions.  Several months later, Iowa farms were at the center of a salmonella outbreak that led to the largest egg recall in U.S. history.

It bears mentioning that Iowa has the largest concentration of factory farms in the country.  If HF 589 remains law, it will make an increasingly suspicious public even more leery of the quality of the meat and dairy products stocking grocery shelves.  As one Iowa state senator, Herman Quirmbach, stated prior to the bill becoming law, “[p]assing this bill will put a big red question mark stamped on every pork chop, every chicken wing, every steak, and every egg produced in this state because it will raise the question of what do you got to hide.”

Supreme Court Justice Potter Stewart once suggested that the Press Clause of the First Amendment deputizes the news media to serve as a “fourth institution outside the Government [acting] as an additional check on the other three branches,” a sentiment that certainly extends to the instant circumstances.  Justice Byron White, in his opinion in Branzburg, conceded that “without some protection for seeking the news, freedom of the press would be eviscerated.”  Unless courts reject holdings like the Fourth Circuit’s opinion in Food Lion, and instead begin striking down ag gag laws such as HF 589 and HB 187, this is precisely the threat we face.