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Animal rights groups target laws that penalize unauthorized workplace videos

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Animal rights groups are going to court to fight "ag-gag" laws, which punish would-be whistleblowers who record activity on farms and at animal procession facilities. Image from Shutterstock.

In 2021, an investigator working with People for the Ethical Treatment of Animals went undercover at various Pennsylvania turkey farms. While there, the investigator obtained video of employee behavior that included mimicking masturbation with the necks of live birds, throwing them like basketballs and crudely attempting to break their necks by shaking them. Nine defendants pleaded guilty to cruelty to animals charges.

Other states have laws to prohibit such investigations, but these regulations may not be on solid ground after a successful federal court challenge to the North Carolina Property Protection Act.

The law, passed by the North Carolina General Assembly in 2015, gave employers a civil cause of action against employees who took photos or videos on private property and used the information against the employer. Additionally, violators of the law could have been liable for a $5,000 fee for each day of the violation on top of attorney fees and compensatory damages.

In 2016, PETA and other animal rights groups challenged the law in the U.S. District Court for the Middle District of North Carolina, arguing that it violated the First and 14th Amendments. According to the complaint, PETA had a history of undercover farm investigations in North Carolina and wanted to continue with the work, but the organization feared getting sued for damages under the new law.

The trial court granted the state’s summary judgment motion asserting that the plaintiffs did not have standing. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals reversed the finding in 2018, and the case went back to trial court. On remand, the court let the First and 14th Amendment claims stand, and in 2020 it found that the law was unconstitutional on free speech grounds.

The case was again appealed to the 4th Circuit. In a February 2023 decision, the majority in People for the Ethical Treatment of Animals v. North Carolina Farm Bureau Federation found that four provisions of the act violated the First Amendment. In October, the U.S. Supreme Court denied certiorari in an appeal seeking to overturn the opinion.

At least seven other states have similar laws, and some in the industry question whether they will stand. Of those seven, an Idaho law put criminal penalties on making misrepresentations to enter an agriculture facility, obtain unauthorized recordings, get records or a job under false pretenses. In 2018, the San Francisco-based 9th U.S. Circuit of Appeals struck down the entering and recording pieces of the law but upheld language that criminalized obtaining records or employment through misrepresentations.

The 4th Circuit opinion, written by Senior Judge Henry F. Floyd, found that the North Carolina law considered undercover investigations in nonpublic areas unprotected speech.

“That is a dangerous proposition that would wipe the Constitution’s most treasured protections from large tranches of our daily lives. Fortunately, it has no basis in law,” Floyd wrote.

He also questioned who else besides animal rights activists might be penalized by the law. If a worker spots Occupational Safety and Health Administration violations and reports them to the federal government, or if a union exposes child labor violations to the state, an employer would in each instance be able to collect the $5,000 fee from those involved, Floyd wrote.

“The scope of this outright ban cannot be overstated,” the opinion states.

Some labor organizations agreed. The United Farm Workers of America filed an amicus brief supporting PETA, arguing that the North Carolina law threatened workers’ First Amendment rights and chilled their ability to investigate, document and file formal complaints. Also, the brief argued that the law prevented farmworkers from documenting issues of public interest, including food safety.

Judge Allison Jones Rushing’s dissent noted that no one, including PETA, has been sued under the North Carolina act. She also detailed Food Lion Inc. v. Capital Cities/ABC Inc., another 4th Circuit case that some say served as the foundation for state laws prohibiting unauthorized video footage at farms.

In 1992, Food Lion sued ABC for fraud, breach of the duty of loyalty, trespass and unfair trade practices after undercover reporters recorded and later broadcast secret footage they had taken of the chain’s meat-handling practices.

In 1999, the 4th Circuit affirmed the trial court finding that the reporters committed a trespass and breached their duty of loyalty. The appellate court also affirmed a finding that refused to force Food Lion to prove publication damages on First Amendment grounds. And it reversed a finding that the ABC defendants committed fraud and unfair trade practices. A trial court struck down most of the $5.5 million damages awarded by a jury, which left damages at $315,000. In 1999, the 4th Circuit struck down all but $2 awarded to Food Lion.

The North Carolina Property Protection Act targeted trespass and breaching the duty of loyalty and, much like the torts in Food Lion, that doesn’t necessarily put a burden on the press, Rushing wrote.

“Applying our precedent, then, the act is generally applicable and does not merit heightened First Amendment scrutiny simply because it may be enforced equally against an investigative reporter and a business competitor,” she wrote. The majority finding in the PETA case calls into question whether Food Lion is still good law, says Jake Parker, secretary and general counsel for the North Carolina Farm Bureau. He helped draft the North Carolina act.

“And if it’s not, that’s really concerning,” he adds. “You can be a double agent, and the First Amendment is going to protect you.”

Favored speech

These regulations, sometimes known as “ag-gag laws,” have a long history in agricultural hot spots. The first one passed in Kansas in 1990 and criminalized gaining access to a farming operation “with the intent to damage the enterprise.” In the ensuing years, other states enacted laws that, while varying in substance, similarly criminalize documentation and prohibit people from gaining access through false pretenses.

As of October, states including Alabama, Arkansas, Idaho, Iowa, Missouri, Montana and North Dakota were still actively enforcing ag-gag laws, according to a report by law firm Husch Blackwell. In January, the 8th U.S. Circuit Court of Appeals at St. Louis upheld two Iowa agriculture laws challenged on free speech grounds.

Still, going forward, it may be a struggle to keep the laws in place due to First Amendment concerns, says Jennifer Zwagerman, a former American Agricultural Law Association President and director of the Drake Agricultural Law Center. The laws focus only on behaviors that portray agriculture businesses negatively, she notes. “If someone wanted to do something positive on the animal livestock farms, people wouldn’t punish that, right? You’re only punishing that negative viewpoint and trying to limit that negative viewpoint. That’s really where that focus is a problem in these ag-gag laws,” Zwagerman says.

Urban and rural views

Roger McEowen, another former American Agricultural Law Association president, disagrees. The taxation and agricultural law professor at Washburn University School of Law says the recent 4th Circuit opinion amounts to “freedom to misrepresent and freedom to lie.” And that can be especially inflammatory in an industry that lacks public understanding. “The problem here is most of the public has never been on a farm. They don’t understand why we do the things that we do in agriculture and why it’s necessary,” McEowen says. “Even if it were to accurately portray what goes on inside a packing plant, it looks horrible to a public that doesn’t understand it.”

McEowen works with ranchers and farmers on legal issues, but he has “rarely” run across a producer that has dealt with undercover investigations. According to him, “one instance” of bad press in an agricultural state has the ability to harm the livestock industry, and by extension, the state economy. Regulating industry

In Pennsylvania, where workers were video recorded tossing turkeys, the farms in question claimed to be producing “humanely raised” turkey, according to Jared Goodman, the PETA Foundation’s general counsel. He adds that overturning such laws is about keeping agricultural facilities accountable for how they treat animals—especially in light of increased “humane-washing,” a marketing strategy that seeks to appease customer concerns with labels like “cruelty-free” or “stress-free.”

Conduct at the turkey farm was allowed to “become business as usual because the company was not exercising oversight or simply didn’t care that was happening—until it was exposed by PETA,” Goodman says. He adds that government audit processes are weak, with virtually no way to actually catch any abuse because inspections are usually announced in advance.

Some who work in agriculture see food safety concerns as an issue for regulators such as the U.S. Department of Agriculture. “I would say you just focus on the USDA to make sure they’re doing their job. I think the industry can live with that, and I think consumers can live with that,” McEowen says.

This story was originally published in the April-May 2024 issue of the ABA Journal under the headline: “Catching Cruelty: Animal rights groups target laws that penalize unauthorized workplace videos—with some success”

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