These so-called "Ag-Gag" rules, which have been proposed or enacted in about a dozen states, would make it a crime to photograph or videotape any activity on a farm or agricultural operation without the consent of the owner. It would apply regardless of what misconduct may be occurring, whether it be mistreating animals, endangering our food supply or despoiling the environment. It would all be off-limits. And not only would the filmer be subject to the offense. Anyone who sends the picture or video to someone else, or merely downloads the images, would run afoul of the proscriptions, too.
Various versions of these anti-whistle-blower laws have already passed in Iowa, Utah and Missouri, and are under consideration in Indiana, Nebraska, North Carolina, Pennsylvania, Tennessee and Vermont. The proposed Pennsylvania bill is a good example of how far this legislation can go in ensuring that what happens at these factory farms, stays in these farms. It would treat as a felony recording any kind of image from an agricultural operation without the owner's consent; downloading or sending over the Internet any such recording; and entering an agricultural operation with the intent to obtain such a recording.
This is not just about animal cruelty. It extends to the safety of what we eat and drink; to the protection of our environment (as many fear that fracking and other forms of energy exhumation and exploration would fall within the broad sweep of this legislation); to our most fundamental constitutional right to speak freely without rebuke. And it runs counter to the flood of federal legislation (False Claims Act, Dodd-Frank Wall Street Reform Act, Whistleblower Protection Enhancement Act) recently amended or enacted in the name of strong whistle-blower reform. Congress has clearly recognized in all of this that whistle-blowers are a much needed complement to the government's often constrained efforts to keep our world clean, safe and free of fraud. Why should there be a carve-out for the farming industry, with its rich government subsidies no less?
Proponents of the Ag-Gag legislation claim these laws are to protect farmers from vegetarian activists and eco-terrorists. They also claim that these videos can be misleading and taken out of context, making commonly accepted farming practices appear gruesome and offensive. None of this really stands up against the many factory farm abuses that have been, and will continue to be (if permitted), caught on tape. Indeed, if abusing animals and endangering our food supply really are "commonly accepted" in the industry or even approaching the norm, all the more reason to quash these laws and bring these so-called activists formally into the federal whistleblower fold.
The ultimate problem with these Ag-Gag laws, and with the anti-whistleblower sentiment that underlies them, is that they are grounded in the unsupportable notion that transparency is a bad thing. To be sure, we do not want to permit or encourage criminal trespass, defamation, invasions of privacy or fraud and deceit of any kind. But that is not what the Ag-Gag laws go after. There are other laws that guard against and punish this kind of mischief. Instead, the Ag-Gag laws go after whistleblowers plain and simple. They are singularly designed to silence this suspect class and maintain a dark shroud over an industry that is central to our health and wellbeing and ripe for exploitation and abuse.
Afterall, we cannot rely on the animals to tell us when farmers behave badly. That is why we must reject these ill-conceived efforts to cloak what goes on behind the scenes in the stockyards, game pens and slaughterhouses. And if the states are not going to do it, the feds need to step in and set things right. Until we can talk to the animals, the furtive photo or videotape is the best we can do to keep a check on the shadowy practices that so often infect agri-business today.
Gordon Schnell is partner in the New York based law firm, Constantine Cannon, specializing in whistleblower and fraud law.