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Update on "ag gag" litigation

published: December 17th 2018
by: Heidi Carroll
source: Igrow

During a recent Animal Care Wednesday Webinar, updates regarding “ag gag” litigation in the United States were shared. Dave Aiken, Agricultural Law Specialist with University of Nebraska-Lincoln, discussed the most recent farm animal legislation trends and cases, which states are involved, and considerations for the sensitive topics. It is important for us in animal agriculture and those producing food to stay up-to-date on the various laws that impact everyday animal care practices and the safety of our livelihood – caring for animals responsibly.

During last year’s “ag gag” update webinar, Aiken reviewed the tactics that many animal activist groups enact across the United States, along with introducing some of the various laws and regulations receiving attention.

“Ag Gag” laws refer to state statutes that make it illegal for someone to come onto the property—often as employees who are undercover activists—and illegal to distribute the undercover videos they take of livestock treatment at farms and ranches. Though proponents of these laws typically refer to them as property protection acts.

In 2018, there is still less than ten states that have current laws in place protecting farms and ranches from potential undercover videographer attempts and falsifying information on employment applications. The legal debate continues to be whether or not these types of statutes are constitutional with regards to the First Amendment. Two recent court opinions have provided guidance on the free speech debate.

  • The Utah federal district court opinion in 2017 ruled that Utah ag gag statues were unconstitutional by violation of free speech. Judge showed the value to the public that undercover videos exposing farm animal mistreatment could provide. This ruling will likely not be appealed.
  • The 9th circuit court of appeals opinion in 2018 ruled that part of the Idaho ag gag statute was constitutional, the lying on employment application to gain farm access; while trying to prevent undercover videotaping was unconstitutional and would violate free speech. This made at least the employment application misrepresentation and access to business records could be a criminal suit instead of a civil suit.

The agricultural community should remember that many of the charges made against undercover videotaping employees could be taken to local courts for civil offenses. These may include lying on employment applications about experience (misrepresentation) or taking videos without permission on private property (trespass). The producer would have to prove economic damages in order to recover the money lost unless nominal damages are being pursued for bare trespassing. The consequences for the violator may be a money penalty.

Staying updated on state level “ag gag” laws is one way for producers to remain proactive. Undercover videos and livestock mistreatment cases cause significant economic damage to both the individual producers involved and the entire livestock industry. Stay vigilant during times of labor shortages and always do background checks along with having each employee sign an animal care ethics agreement for your farm or ranch.

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