Just after calving season on my family’s Polled Hereford ranch this year, I helped my father and grandparents treat new calves and their mothers for lice. At one point, a calf inside the barn saw her mother on the outside and tried to jump a fence to reach her – poor thing got stuck, so I had to extricate it from the fence. The problem here is that the calf was already weighing in at around 450 pounds, so I had to push less than gently to get him off the top of the fence. In the end, the calf reunited with his mother, I patted his head as he moo-ed contentedly, and then I returned to the job at hand. Pretty innocent story, right?
Now imagine an animal rights activist had obtained employment with us under false pretenses and secretly filmed the incident, then edited the video to show a five second clip of me tackling a calf splayed over a fence, baying with displeasure. Out of context, that five second clip would seem quite a bit worse than how the actual event occurred, and it just so happens that animal rights activists do this kind of thing rather frequently. A previous blog post illustrates this point, showing that only a very small percentage of undercover video campaigns actually resulted in convictions. In that same post, our communications coordinator Casey Whitaker thoroughly explains how animal rights activists’ primary objectives are to propagate a pro-vegan, anti-animal agriculture agenda, so I will not detail that subject here.
Many in the agricultural community seek protection from malicious animal rights activists through various laws (termed “ag-gag” legislation) that place penalties on individuals or organizations for performing different actions on farms, depending on the state. The purpose of recounting the above anecdote is to establish that I understand and sympathize with farmers who are searching for ways to protect themselves from malicious animal rights activists. I too want to protect my own family farm. Farm protection legislation (so-called “ag-gag” laws) are one way that farmers and legislators are trying to eliminate this activist tactic. These laws share some similarities and differences, so let’s look at all nine of these existing laws to get a feel for what they entail.
Idaho’s law is similar to the Kansas law (see below), but with the addition that seeking employment under false pretenses and with intent to cause economic injury to the employer is a misdemeanor. I am definitely supportive of that idea, but I have some reservations about the subjectivity of what false pretenses and intentions could entail. For instance, if a person overstates his or her ability to operate a tractor during an interview, is it really worth a misdemeanor charge? Or what if a person really can drive a tractor well, but makes a mistake one day that breaks a piece of equipment, or simply works more slowly than the employer would have hoped; is this worth a misdemeanor? I would consider issues such as these civil disputes, not criminal dispute, which are distinct areas of law and are handled differently.
Iowa’s law doesn’t deal directly with with undercover videos. Instead, it focuses on ensuring that farmers have recourse against activists who impede farming operations by damaging property, killing animals, or otherwise harming animals.
Kansas’ Law also has provisions against the damage of property and animals, but also makes it illegal to take pictures of nonpublic areas in the farm through any means without the consent of the property owner. Though the latter provision would indeed protect farmers, it achieves that protection through a law that may be contradictory to legal precedent involving the Fourth Amendment (see Katz v. United States, and in particular a “reasonable expectation of privacy”). A property owner has no reasonable expectation of privacy if he or she allows a person access to a private area, even if the property owner issues a notice explicitly forbidding the recording of any data. Property owners do have a reasonable expectation of privacy if the area or objects being recorded are not visible from a public vantage point, like a public road. This idea also means that individuals cannot break an entering or utilize technology outside the general public use – such as advanced thermal imaging techniques – to view private property.
Missouri’s law is very practical in terms of protecting farmers from undercover activist. The law stipulates that any farm professional who digitally records animal abuse must submit that recording, unedited, to the proper authorities within 24 hours of its capture. I really like the idea of requiring unedited recordings to be submitted quickly. Taking that further, it seems that tampering with evidence that may be admissible to court should be illegal in the first place.
Montana’s Law has similar to provisions to Kansas’. However, it does include a provision exempting humane animal treatment shelters whose purpose is the humane care of animals. While this certainly does not apply to animal rights organizations, I’m concerned that they may try to find a way to take advantage of this exemption.
North Carolina’s law is also similar to the previous three, but with some key differences. For instance, it references the concept of “duty of loyalty to the employer” as justification for some important provisions. The text never defines what this duty actually entails, and is open to interpretation. Does it mean employees can be persecuted for any perceived breach of that loyalty? Crazy as that sounds, it may just be the case, due to another provision that states employers can sue for damages resulting from “An act that substantially interferes with the ownership or possession of real property”. So hypothetically, if an employee decides to leave his or her job for any reason, an employer could potentially sue for breaching a subjective notion of loyalty that may or may not interfere with business operations, transitively affecting the ability of an employer to own property. I understand what this law is trying to achieve: protection against activists seeking employment under false pretenses. I agree that employers should be able to hire employees without fearing nefarious ulterior motives.
North Dakota’s law is similar to both Kansas’ and Montanta’s. Additionally, North Dakota boasts another section designed to prevent the theft or release of animals (another problem perpetuated by animal rights activists).
Utah’s law is basically a more concise version of Idaho’s.
South Carolina’s law looks well done. This law allows farmers to sue for damages if an individual enters property without consent and with the intent of somehow damaging the enterprise. This seems reasonable, as it does not specifically refer to employers or employees. Rather, it focuses on consensual entry to the property, meaning that courts can determine if a crime was committed based on whether or not the person had legal access to the property or not.
While these laws take a step toward protecting farmers, I have more ideas for what animal agriculture can do. I will share these thoughts in my next blog!