Arkansas Bill Would Let Businesses Sue Whistleblowers

Update: Bill 1665 passed the state senate, with an amendment. It was sent back to a house committee, which also recommended it pass.  There'll be no Arkansan Erin Brockovichs if a new state law passes the senate this week. Arkansas senators are considering a bill that would allow private businesses to sue whistleblowers that expose abuse or wrongdoing. The bill has already passed the house, but not without receiving plenty of dissent from Republican lawmakers, free speech proponents, and animal rights groups.

The law would make it legal for businesses to sue anybody who goes onto a business's private property and, among other acts, "records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer." This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit.

The bill is a much broader version of similar, so-called "ag-gag" laws that have passed in other states. These laws prohibited taking photos or videos on farms, with the intent of extinguishing undercover investigations of factory farms and animal abuse violations.

"This is sort of ag-gag on steroids," said Cody Carlson, a staff attorney at Mercy for Animals, an animal welfare nonprofit that often conducts undercover exposés at factory farms. "It doesn't just apply to animal cruelty undercover investigators, it applies to virtually everybody."

Proponents of the bill say that whistleblowers would still be protected by federal laws. Representative Aaron Pilkington (R), who voted in favor of the bill, said the language is intended to prevent people from trespassing and potentially putting themselves in danger.

"It's just about going into places you're not allowed to be in," Pilkington told me. "If you work in a daycare center and there are problems going on, you have every right to whistleblow on that. But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right."

But while whistleblowers are sometimes insiders, like Chelsea Manning or Edward Snowden, it also often takes outsiders to draw attention to wrongdoing. Under this new bill, people like Mother Jones reporter Shane Bauer, who spent four months undercover at a private prison in Louisiana, may be subject to lawsuits.

The bill's language is broad and it would likely take lawsuits going in front of a judge to suss out the scope of what is liable and what's not under the bill. Carlson told me this may be because more specific laws targeting farms only have failed when challenged in court, like an ag-gag law in Idaho that was deemed unconstitutional.

Even fellow Arkansas House Republicans were concerned about the bill. Representative Jimmy Gazaway, who voted against the bill, said he doesn't think whistleblowers should be limited to only employees on the job.

"I felt like this bill was designed to intimidate those who know about wrongdoing into not reporting it under the threat of a lawsuit," Gazaway told me. "I don't want to do anything that would discourage someone from blowing the whistle."