Iowa & Utah are first states to pass ag-gag laws

    DES MOINES,  SALT LAKE CITY –-Iowa Governor Terry Branstad and Utah Governor Gary Herbert on March 2,  2012 and March 20,  2012 signed into law the first two U.S. state “ag-gag” bills,  written to suppress undercover video exposés of animal handling.
Following a template introduced into at least eight state legislatures since 2010,  the Utah law creates a criminal offense called “agricultural operation interference,”  committed if a person,  “without consent from the owner of the operation,  or the owner’s agent,  knowingly or intentionally records an image of,  or sound from,  the operation, while the person is on the property where the agricultural operation is located,  or by leaving a recording device on the property where the agricultural operation is located.”
A first violation of the Utah law is a class A misdemeanor.  A second violation is a third degree felony.
“If an individual steps on someone else’s property and takes a picture of a horse that appears to be starving,  and then provides that photograph to the authorities,  that person would be in violation of this law,”  unsuccessfully objected Humane Society of Utah executive director Gene Baierschmidt in a letter to Governor Herbert.
Said Government Accountability Project food integrity campaign director Amanda Hitt, “As a dairy farmer’s daughter,  I know animal agriculture is often misunderstood and thankless work.  I also know that events seen out of context can be misconstrued.  But we all know there are right and wrong ways to run businesses, and bad actors shouldn’t enjoy the benefits of overreaching legislation.”
A bill similar to the one passed in Utah and the bills considered in other states stalled in Iowa in 2011 over questions of constitutionality.  Taking a different approach, the newly passed Iowa law stipulates that “A person is guilty of agricultural production facility fraud if the person willfullyŠobtains access to an agricultural production facility by false pretenses [or] makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facilityŠwith an intent to commit an act not authorized by the owner.”
A first violation of the Iowa law is “a serious misdemeanor.”  A “second or subsequent conviction is “an aggravated misdemeanor.”
The Utah and Iowa bills both seek to circumvent multiple precedents established between 1992 and 2002 in cases involving use of undercover exposés by the ABC television magazine show Prime Time Live.

Food Lion precedent

The first and most prominent of the cases against ABC was brought by the Food Lion supermarket chain. Prime Time Live reported, summarized Freedom Forum First Amendment Center executive director Kenneth A. Poulson,  after the 1999 final appellate ruling in the case,  “that some Food Lion stores engaged in highly questionable food handling,  including the repackaging and sale of spoiled meat. Documentation for the report was obtained by two ABC reporters who applied for jobs with Food Lion and taped company employees with hidden video cameras.  Food Lion chose not to challenge the truthfulness of the reporting.  Instead,  Food Lion attacked the gathering of the news, charging that by lying on their applications and providing fake references,  the ABC reporters engaged in fraud and trespass.”
Food Lion won a jury award of $5.5 million in 1997.  The Fourth U.S. Circuit Court of Appeals in 1999 ruled that the ABC reporters “were indeed guilty of trespass and of violating a breach of loyalty as Food Lion employees,” explained Poulson,  but reduced the award to $2.00.
The court wrote that the use of “run-of-the-mill torts” to attempt “an end-run around First Amendment strictures is foreclosed.”
Prime Time Live also won cases brought against reporters who used a hidden camera and false identities in a 1994 undercover investigation of a medical laboratory,  and against use of a hidden camera in an exposé of racial profiling by three New Jersey police officers.
The Utah law is essentially intended as a preventive measure,  as few undercover video exposés of factory farming have been produced in Utah.  But the Iowa law was passed after multiple exposés of Iowa agribusiness won national notice.
In May and June 2009,  for instance, Mercy for Animals videotaped how unwanted male chicks were culled and killed at a hatchery in Spencer,  Iowa.  Hy-Line North America admitted to “animal welfare policy violations” at the hatchery three months later,  after undergoing an independent audit.  In February and March 2010, then-Humane Society of the U.S. investigator Cody Carlson worked for 15 days at Rose Acre Farms egg-laying hen hatcheries in Winterset,  Stuart, and Guthrie Center,  Iowa,  and for 10 days at a Rembrandt Enterprises egg farm in Thompson, Iowa.  At each facility Carlson documented rough treatment,  hens entangled in cage wire so that they could not reach food and water,  hens with untreated injuries,  and hens who had been dead for many days but remained in cages among live birds.  In June 2011,  Mercy for Animals released undercover video of sows in gestation stalls, piglets enduring castration and tail-clipping without anesthesia at an Iowa Select Farms piggery in Kamrar,  Iowa–and showed workers tossing piglets on several occasions.  The Safeway and Kroger grocery chains suspended purchasing pork products from Iowa Select Farms, pending internal invetigation.
Then,  between May 23 and August 1, 2011,  Mercy for Animals investigators at Sparboe Farms laying hen facilities in Iowa,  Minnesota, and Colorado collected video of comparably shocking conditions plus unwanted male chicks being culled by live maceration.   Aired on November 18,  2011 by the ABC television programs Good Morning America,  ABC World News Tonight, and 20/20,   the Mercy for Animals video reportedly cost Sparboe Farms customers including McDonald’s Restaurants,  Target,  Wal-Mart, Cargill Kitchen Solutions,  and SuprValu Inc.
The Mercy for Animals video was broadcast two days after Sparboe was cited by the Food and Drug Administration for 13 “serious” and “significant” violations of sanitation requirements at five different sites,  disclosed ABC News reporters Cynthia Galli,  Angela Hill, and Rym Momtaz.
“The intent of the Iowa bill is simple: shield animal agribusiness from public scrutiny by punishing whistleblowers and protecting animal abusers,”  wrote Humane Society of the U.S. president Wayne Pacelle to Iowa governor Branstad.
Elaborated former HSUS investigator Carlson,  in a guest blog for The Atlantic,  “The law lets factory farms and slaughterhouses screen out potential whistleblowers simply by asking on job applications, ‘Are you affiliated with a news organization,  labor union,  or animal protection group?’  Two years ago,  I had to answer a similar question.  If the ag gag law had been in effect then,  I might be writing this article from a cell.  Ag gag laws pretend to be about preventing ‘fraud,'”  Carlston continued,  “but they protect guys like Billy Jo Gregg,  a dairy worker who was convicted of six counts of animal cruelty in 2010 after being caught punching, kicking,  and stabbing restrained cows and calves at an Ohio farm.  They protect the North Carolina Department of Agriculture official who recently pled guilty to obstruction of justice after tipping a Butterball turkey plant off to a police investigation. The investigation, based on Mercy for Animals’ undercover footage,  resulted in seven arrests for felony and misdemeanor animal cruelty.  Ag gag laws also protect the slaughterhouses that regularly send sick and dying animals into our food supply.  But they don’t protect the USDA inspector who had his job threatened after reporting violations.  That inspector had to tip off an HSUS investigator, and only then was the plant closed.”
Ag-gag legislation of any sort “has only one purpose:  to hide factory-farming conditions from a public that is beginning to think seriously about animal rights and the way food is produced,”  editorialized The New York Times in 2011.
“These bills share common features,”  the Times continued.  “Their definition of agriculture is overly broad;  they include puppy mills,  for instance.  They treat undercover investigators and whistle-blowers as if they were agro-terrorists,  determined to harm livestock or damage facilities.  They would criminalize reporting on crop production as well.  And they are supported by the big guns of industrial agriculture:  Monsanto,  the Farm Bureau,  the associations that represent pork producers, dairy farmers and cattlemen,  as well as poultry, soybean,  and corn growers.”
“I think this is incredibly bad public policy for a nonexistent problem that is being worked across the country by big ag that doesn’t want to play by the rules and has had it their way for a long time,” Iowa state senator Matt McCoy of Des Moines told Jason Clayworth of the Des Moines Register.
Agreed state senator Herman Quirmbach, of Ames,  “Passing this bill will put a big red question mark on every pork chop,  chicken wing, steak and egg produced in this state,  because it will raise the question of what do you have to hide?”

Following the money

The Iowa law was pushed through by state senator Joe Seng of Davenport.  “The National Institute on Money in State Politics has found that almost 10% of the $8.9 million that Governor Branstad raised in his most recent campaign came from the agriculture industry,”  noted Clayworth. “Almost $8,000–more than one-fourth of all the campaign money raised in 2010 by Seng came from the ag sector, according to the nonprofit, nonpartisan watchdog group.”
State representative Annette Sweeney of Alden,  “who was one of the main backers of the bill last year,  received about $8,300 from agricultural interests,”  Clayworth continued. Lee Hein of Monticello,  vice chair of the Iowa House Agriculture Committee, “received more than $12,500,  and Iowa Senate Democratic Leader Michael Gronstal of Council Bluffs received more than $20,500,  records show,”  wrote Clayworth. Contributing $152,000 to Branstad’s campaign were Eldon and Regina Roth, founders of Iowa Beef Products in Sioux City.  The Iowa Farm Bureau donated $53,787,  Iowa Select Farms cofounder Debra Hansen of West Des Moines donated $50,000, Terra Indust-ries chief executive Michael Bennett,  of Sioux City,  donated $40,000, Gerald Weiner of International Cattle Sales of South Dakota sent $40,000,  and the Iowa Corn Growers Association chipped in $15,000.
Seng received $2,500 from John Deere & Co.,  $2,500 from the Iowa Corn Growers Association,  $1,000 from the Iowa Veterinary Medical Association,  $750 from Kraft Foods,  and $500 from the Iowa Grocery Industry Association, Clayworth reported.
The agrochemical corporate giant Monsanto also reportedly backed the ag-gag bill. “Monsanto has more facilities in Iowa than in any other state, with more than 25 offices,” explained Food & Environment Reporting Network founder Tom Laskawy in a column for Grist.  The Iowa law would protect Monsanto’s seed houses, pesticide manufacturing plants,  and research facilities,”  Laskawy wrote.  “That’s a bit ironic, given that Monsanto investigators are notorious for trespassing on farmers’ property and going to extreme measures to produce evidence of seed patent infringement.”

Something to gag about

That wasn’t the only irony.  On March 28, 2012 the Des Moines Register revealed that “West Des Moines police are investigating whether criminal charges are warranted in the case of a Farm Bureau employee behaving badly.  A Farm Bureau vice president told authorities that one of the agency’s employees had been caught on video urinating on the office chairs of four female co-workers.  The suspect, a 59-year-old man from Des Moines,  was fired.  The man had worked in the information technology department and had access to all computers and the employee database,  Farm Bureau officials told the police. Police documents said the man would look up employee photos in the database.  He ‘would pick out the attractive females and then on off-hours, he would come into work, go to their desk and urinate on their chairs.’  Employees first started complaining about stains on their chairs in October 2011.  Surveillance cameras were installed in February,”  just as the bill meant to thwart hidden video operations began to move through the Iowa legislature.
“Mercy for Animals will explore all legal avenues to challenge and overturn this unconstitutional law,  which is patently un-American and a clear violation of freedom of speech,”  pledged MfA founder Nathan Runkle.
Suggested Farm Sanctuary senior director for strategic initiatives Bruce Friedrich, “Responsible industries would meet this stream of horrid undercover investigations” by making “a serious commitment to change their behavior. They would promulgate strong regulations to protect animals and implement ‘no tolerance’ policies for at least the sadistic abuse. And they would,  as [livestock handling systems designer] Temple Grandin has suggested,” initially in an article for the livestock industry magazine Meat & Poultry in 2008,   “put video cameras into their factory farms and into their slaughterhouses to monitor animal treatment. They would hire independent inspectors to review the video and make sure that there was no gratuitous abuse.”
The American SPCA on February 17,  2012 released poll data from Lake Research Partners showing that 71% of Americans support undercover efforts to expose animal abuse on factory farms, and that 64% oppose ag-gag legislation.
Among 27 organizations charging in a joint statement that ag-gag laws threaten workers’ rights,  public health and safety,  and journalistic freedom were the Center for Constitutional Rights,  Center for Science in the Public Interest,  Government Accountability Project,  National Freedom of Information Coalition,  National Press Photographers Association,  Natural Resources Defense Council, Organic Consumers Association,  United Food & Commercial Workers International Union,  and the Whistleblower Support Fund.
Nebraska,  Minnesota,  Missouri, Illinois,  and New York had ag-gag bills pending in their respective legislatures as the April 2012 edition of animal people went to press.  An ag-gag bill proposed in Indiana had died in committee.
–Merritt Clifton