Image via Wikimedia Commons.
On Monday, the Animal Legal Defense Fund and PETA, among others, filed a lawsuit in Salt Lake City challenging the constitutionality of Utah’s year old ag-gag legislation. It is the first suit of its kind to legally challenge the development and spread of these laws, which shield industrial farming operations from the whistleblowing activity of undercover investigators.
"Utah’s ag gag law is such a blatant affront to free speech that we are very optimistic about the outcome," Matthew Liebman, a Senior Attorney at the Animal Legal Defense Fund, told Motherboard. "We never file a case that we don’t think we can win and this case is no exception."
The lawsuit's third plaintiff, Amy Meyer, is the first person to be prosecuted under ag-gag legislation. In February she was found filming a slaughterhouse on a public street in Draper City, Utah. All charges were dropped soon after when journalist Will Potter, another plaintiff, reported her arrest on his website, Green is the New Red. Subsequently, the meatpacking plant concealed itself from public view.
Utah’s law categorizes the act of leaving a recording device for sound or images on an agricultural operation as a class A misdemeanor. It also criminalizes the act of accessing an agricultural operation under false pretenses and applying for employment at such a facility with the intention to document conditions. The latter is considered a class B misdemeanor.
To put this in perspective, other class A misdemeanors in Utah include negligent homicide, DUI with injury, and assault on a police officer with potential fines of up to $2,500 and up to one year in jail. The list of class B misdemeanors comprises public nuisance, concealed weapons, and resisting arrest with fines of up to $1,000 and a possible six months in jail.
The plaintiffs' charge that the law is unconstitutional is predicated on violating the triad of the First Amendment, the Supremacy Clause, and the Fourteenth Amendment. The first of the bunch is the least surprising. Not only is the law “constitutionally overbroad” in that it prohibits much more than it should, but it also suffers from “content and viewpoint-based discrimination.”
Two basic ideas underlie the legal concept of content discrimination according to a 2012 article by Lisa Kendrick, a law professor at the University of Virginia. The first is that “it is usually wrong for the government to regulate speech because of what it is saying.” On the flipside, “it is usually acceptable… for the government to regulate speech for reasons other than what it is saying.”
Essentially, the plaintiffs argue that Utah’s law prohibits speech in the form of photographs and recordings simply because of its anti-industrial agriculture content. This debilitates an important debate on agriculture, food safety, and labor by deeming only industry-approved speech legal and making whistleblowing “effectively impossible.”
By contrast, the penalties do not apply to other forms of speech that are approved by the owners of agricultural operations. It’s not hard to imagine that owner-approved speech likely depicts a more rose-tinted image of industrial agriculture.
Representative Michael Noel called investigators “jack wagons,” which apparently means loser. Senator David Hinkins, the Senate sponsor of the legislation, spoke out against “the vegetarian people,” whom he considers “terrorists.”
The lawsuit also looks at the law in light of the Fourteenth Amendment, specifically the guarantee of equal protection. The plaintiffs argue that Utah has violated the Equal Protection Clause as the law was “enacted based on improper motives, including animus towards a particular group of people” – in this case, animal protection advocates.
Representative John Mathis, sponsor of the House bill, repeatedly referred to animal advocates and organizations for animal protection as purveyors of propaganda to “change the way agriculture’s done.” He also likened undercover investigators bizarrely to a neighborhood watch that might leave a recording device in his house to make sure he didn't abuse his wife or children. His colleague Representative Michael Noel called investigators “jack wagons,” which apparently means loser (though I had to look that one up, as did the lawyers). Senator David Hinkins, the Senate sponsor of the legislation, spoke out against “the vegetarian people,” whom he considers “terrorists” trying to “defame animal agriculture” and “kill the animal industry.” ( Video of some of these proceedings are available on the Utah State Legislature’s website.)
Hinkins, however, has claimed in widely-reprinted comments that the law has nothing to do with animals but relates solely to tresspassing. Liebman, the Animal Legal Defense Fund attorney, vehemently disagrees.
"Saying this law has nothing to do with animals is like saying the immigration bill has nothing to do with immigrants. It’s obvious that the sole purpose of this law is to silence animal rights groups and prevent us from exposing cruelty on factory farms. Utah legislators, including Senator Hinkins, made a slew of statements on the Senate floor against animal protection groups, making it quite evident that this law is in fact about animals and their treatment by the meat industry."
Liebman also scoffed at the idea that the law targeted tresspassing. Most of the major exposés of animal facilities done by journalists and animal activists over at least the past five years have been employment-based, not trespass-based. And tresspass laws are already on the books.
"The law is not about sneaking onto someone else’s private property and violating their privacy," said Liebman. "It’s about criminalizing those who go through a routine hiring process to film cruelty and food safety violations in plain sight at major agribusiness operations. And even if it were just about trespassing, Amy Meyer’s experience of being criminally prosecuted for filming a slaughterhouse from a public road demonstrates how the ag gag law can be abused, and a factory farmer need only allege that the person filming crossed an invisible property line.
As much as supporters of the legislation try to maintain the argument hat the legislation is not motivated by malice, it’s hard to believe that claim when proponents of the law very clearly show their antagonistic attitudes towards undercover investigators, animal advocates, and even vegetarians in documented sessions of government.
Whichever way the court rules, appeals are sure to follow, making this a long legal battle. More lawsuits are bound to come too, challenging the nation's ag-gag laws on behalf of the "jack wagons” and others who believe that our current industrial farming practices are unethical, unsafe, and wrong.