For years, animal rights activists have employed various subterfuges to gain access to animal facilities to film or video animal abuses. For example, a reporter will apply for a job at an animal facility and use his/her I-phone to record mistreatment of animals. The adverse publicity generated by these undercover activities has cost many entities millions of dollars and resulted in some bankruptcies.

Several states have enacted so-called “ag gag” laws that attempt in one way or another to limit these underground efforts. These laws typically prohibit film or video of animal or research facilities.  Others prohibit submitting a false employment application as a means of gaining access to such facilities. These laws have met with varying results in court.

Idaho was the first state to enact a modern ag gag law in 2014, following release of a video demonstrating animal abuse at a dairy. The statute creates a new crime: interference with agricultural production. Such interference consists of:

  • Entry into an agricultural facility by force, threat, misrepresentation or trespass.
  • Acquisition of records of such a facility by force, threat, misrepresentation or trespass.
  • Obtaining employment in such a facility by force, threat, misrepresentation or trespass, with intent to injure the facility’s operations.
  • Making audio or video recordings of the operations of such a facility without consent.
  • Intentionally causing injury to the facility, its operations or its property.

Violation is a felony punishable by a year in jail. In addition, the statute provides a private right of action to recover twice the economic injury sustained by the facility.

The Animal Legal Defense Fund sued to enjoin the statute, arguing that it violated both the First Amendment and equal protection. The District Court agreed with both arguments. It rejected the State’s argument that the First Amendment does not protect false statements. The correct rule, the Court held, is that it does not protect false statements that cause legally cognizable harm. Here, false statements to obtain employment or access do not cause material harm. Disclosure of animal mistreatment may cause material harm, but that is not the direct product of the alleged misrepresentations. The false statements actually serve First Amendment values by exposing misconduct and fostering public debate.

The District Court also held that the statute violated equal protection because it served no legitimate public purpose. Existing statutes were ample to protect farms from fraud and trespass. There was no rational purpose for affording agriculture, a powerful political force in Idaho, more protection than other private businesses.  And the obvious intent and purpose of the statute was to silence criticism, which is contrary to public policy. The State’s appeal to the Ninth Circuit was argued earlier this year.

A similar Wyoming statute fared considerably better, at least in the District Court. That statute prohibited entry onto private lands (1) for the purpose of collecting data without permission; (2) collecting such data without permission; and (3) crossing private land to collect data without permission. The statute provided for civil and criminal penalties for violation.

The District Court rejected plaintiffs’ First Amendment challenge to this statute, reasoning that it merely prohibited trespassing on private property rather than preventing speech. It relied on several Supreme Court opinions rejecting the notion that the First Amendment privileges someone to exercise free speech rights on another’s private property. It distinguished the Idaho decision on the ground that Wyoming prohibited all forms of trespass to obtain data, whether that data was favorable to the landowner or not.

The District Court also rejected an equal protection challenge. Existing trespass law in Wyoming was insufficient to provide complete protection, because it required actual knowledge of the trespass and/or a refusal to depart when requested. Thus, there is a rational basis for the statute. The case is currently on appeal to the Tenth Circuit.

North Carolina takes a completely different approach, focusing on persons who seek employment for the purpose of exposing illegal behavior. The North Carolina Property Protection Act imposes civil liability on an employee who seeks to obtain documents, video recordings or audio recordings from non-public areas of the employer’s premises and uses same to breach fiduciary duties to the employer. The Act provides for actual damages, costs, attorneys’ fees, and exemplary damages of $5,000 a day. It is not limited to agriculture.

The Animal Legal Defense Fund and the People for the Ethical Treatment of Animals filed suit to enjoin the Act on the ground that it infringed on their First Amendment rights. The District Court declined to reach the merits, finding that the likelihood of injury was too speculative to permit plaintiffs to proceed.

The defendants in the case were the North Carolina attorney general and the chancellor of the University of North Carolina. The District Court found that there was no evidence that either would file suit if the plaintiffs operated an underground investigation. The Court also rejected plaintiffs’ claim that the statute infringed on their right to receive information. Again, there was no basis for believing that the undercover investigators would not be willing to risk a lawsuit in pursuit of their objectives. Plaintiffs filed an appeal in May 2017.

Missouri has enacted a statute that makes it a misdemeanor to obtain “access to an animal facility by false pretenses for the purpose of performing acts not authorized by the facility.” This language is clearly broad enough to cover surreptitious filming by a reporter posing as an employee. Because it does not directly address such issues, it is less likely to face a successful facial challenge.

The statute also provides for a private right of action for actual and punitive damages, and attorneys’ fees, by any person “damaged by a violation of this section.” It is not clear whether this would cover damages incurred as a result of adverse publicity arising from an undercover investigation.

Iowa has enacted a statute that makes it a misdemeanor to obtain access to an agricultural production facility by false pretenses, including a false representation on an employment application if the objective is to commit an unauthorized act. There is no provision for a private right of action.

Neither the Missouri statute nor the Iowa statute has yet been challenged.

Another proposed approach, not yet enacted in any state, requires anyone with photos or video of animal abuse to turn over all copies to law enforcement within 24 hours. Ostensibly, the objective is to put an early end to the abuse. Activists argue, however, that its real purpose is to avoid publicity and to put an early end to undercover investigations.