Free-Speech Rights versus Property and Privacy Rights: "Ag-Gag" Laws and Limits of Property Rights.

• Author: Drake, Ian J.

Beginning in the 1990s, private agricultural firms, research institutions, and their political allies began seeking governmental protection from undercover investigations conducted by animal rights activists. Some state governments responded by enacting statutes that regulate undercover investigatory behavior, creating statutory prohibitions on trespasses and on evidence gathering without permission and requiring undercover investigators to quickly turn over evidence of animal abuse or face civil and criminal fines and penalties (Lin 2015, 474). To date, three such state laws--popularly known as ajj-jjatj laws, a term used by critics of the laws--have been successfully challenged based on claims that they violate First Amendment free-speech rights, and most scholars have agreed with the analytical approach taken by federal courts' doctrinal approach. However, in this article, using tort and property rights theory, I contend that so-called ag-gag laws are efforts to protect property rights that do not threaten free-speech rights. The doctrine applied by federal courts to date, the "false speech" doctrine, is an unwarranted expansion of speech protection that threatens to eviscerate the common-law rights of property owners to exclude others from their property and maintain their privacy. Ag-gag laws and the freespeech claims they have produced are important beyond the insular doctrinal debates among lawyers and judges. The expansion of the "false-speech" doctrine is a threat to private businesses, for-profit and nonprofit alike, because they are faced with the possibility of undercover investigations without recourse to the courts under traditional property rights protections.

Since the 1990s, when state ag-gag laws were first enacted, most scholars have supported undercover animal activists' claims that ag-gag laws violate speech rights (see, for example, Reid and Kingery 2015; Shea 2015; Coleman 2017). Some scholars have suggested that the advent of ag-gag laws highlights the need for greater workplace "whistleblower" protections (Lacy 2013; Negowetti 2014). Others have argued that ag-gag laws are simply bad policy because they purportedly seek to protect business owners' privacy and property rights but result in illegal animal abuse going undetected (Shea 2015). Some critics have concentrated on particular problems that ag-gag laws seek to hide, such as sexual abuse of animals (Lewis 2017). However, most scholars have concentrated on the objective of quashing undercover investigations per se and on the constitutional issues raised by ag-gag laws. They contend that ag-gag laws are overbroad unconstitutional restrictions on speech (Bollard 2012; Landfried 2013).

In United States v. Alvarez (2012), the U.S. Supreme Court held that free-speech protections extend to false speech, with the provision that the speech does not involve a legally cognizable harm and the speaker otherwise derives no benefit from the speech (at 723). (1) Most scholars have construed business owners' property rights claims as unserious objections, distractions, or evasions of the problem of animal abuse or as simply much less worthy of consideration in comparison to free-speech concerns. For example, Larissa U. Liebmann has contended that the real purpose of ag-gag laws is to prevent "the dissemination of truthful, unprivileged information to the public" (2014, 590). Rita-Marie Cain Reid and Amber Kingery similarly argue that the claims of privacy and property rights are smoke screens because "(Ijarms need protection from animal or food safety activists only to hide animal cruelty or unsafe food practices" (2015, 63). James Cooper's sentiments encapsulate most scholars' opinions: "[A]g-gag legislation is not only unconstitutional, but is also morally reprehensible" (2013, 254). In short, critics see ag-gag laws as pernicious attempts to quash unfavorable publicity of the agricultural industry (Pitts 2012; Wilson 2014; Potter 2017; Rasmussen 2017).

As of June 2020, ag-gag laws have been enacted in one form or another in thirteen states: (2) Alabama (2002), Arkansas (2017), Idaho (2014), (3) Iowa (2012), (4) Kansas (1990, 2012), (5) Missouri (2012), Montana (1991, 2015), North Carolina (2015), (6) North Dakota (1991), South Carolina (2012), Texas (2017), Utah (2012), (7) and Wyoming (2016). (8)

Animal Rights Undercover Investigations

Contemporary animal activists, like their Progressive Era predecessors, have filled in what they see as a gap between statutory prohibitions on animal cruelty and law enforcement, doing the undercover investigative work that police cannot afford or refuse to do. Cruelty concerns in the context of industrial-scale livestock-slaughtering op erations have been regulated only since enactment of the federal Humane Slaughter Act of 1958 (Curnutt 2001, 72, 169). (9) Protections for animals used in commercial and scientific research facilities began with the federal Laboratory Animal Welfare Act of 1966. (10) Yet even the federal government's own compliance reports have shown that enforcement in the farm industry has been inconsistent (U.S. Government Accountability Office [GAO] 2004, 2008, 2010). Activists accordingly contend that undercover investigators "need to be allowed to do the work that the federal and state governments are not: documenting the kind of behavior most of us abhor" (Bittman 2011). (11)

Beginning in the 1980s, animal activists engaged in undercover investigations of animal experimentation labs, and some activists took a radical course, using bombings, arson, cyber infiltration of research institutions' computer systems, and vandalism. Congress responded in 1992 with the Animal Enterprise Protection Act, which created the new crime of "animal enterprise terrorism" (Hirsch-Hoefler and Mudde 2014, 587). At the state level, activists committed common-law crimes, such as arson, breaking and entering, theft, burglary, and property crimes under the rubric of vandalism. Because animals are considered property in all jurisdictions in the United States, the common-law property crimes would apply to acts involving the "liberation" of animals, whether in labs or farm operations (Hodges 2011). The state-level ag-gag laws enacted in the 1990s were justified with claims that terrorism was being thwarted (Loadenthal 2013).

Since 1998, there have been more than a hundred reported undercover investigations in North America by a variety of nonprofit animal activist groups (Animal Visuals n.d.). Activists call such investigations DIY (do-it-yourself) direct action, which originated with the environmental activist group Earth First! and became popular in the 1990s. Nonviolent "direct actions" include mailings, hunger strikes, demonstrations, and undercover surveillance (Munro 2005, 76). The purposes of animal welfare undercover investigations vary, but the most common objectives are (1) to publicize unethical treatment of animals used in industrial farming operations in an effort to shame local, state, and federal officials into initiating prosecutions of such treatment of animals; (2) to encourage consumers to reject meat consumption and adopt vegetarianism or veganism; and (3) to encourage public revulsion and stigma against the companies that manufacture, distribute, or purchase the products of such animal operations. The publication of these undercover investigations is done in order to "shock the conscience" of the general public, and animal rights activists believe such efforts are helpful in recruiting members, generating media coverage, and creating public pressure on officials to take action through legislation and enforcement (Garner 2002). The evidence generated by such undercover investigations has resulted in criminal prosecutions of farm owners, managers, and employees; animal meat recalls; and the closure of some facilities (Carlson 2012). Importantly, though, it must also be noted that publication of such activities contributes to nonprofit group fund-raising efforts (Bray 2015, 380).

Activists surreptitiously take photos and make videos of what they interpret as abusive acts. Such surveillance is preferred by activists because they do not consider their methods illegal, their work usually does not result in imprisonment for the investigator, and their methods are nonviolent. As one activist advised, "Get a video camera, get yourself a job in a research place[,] ... [and] go out there and get the film and you're not breaking the law, but you're breaking the back of the opponents" (qtd. in Munro 2005, 89). Prosecutors often rely upon the evidence provided by these activists in prosecutions for animal cruelty.

The Legal Rights of Commercial Animal Facility Owners

Although activists may believe their investigations are legal, it can be argued that they violate multiple state laws. For example, trespass is the entry onto the property of another without permission, which can be a civil or criminal violation. However, modern case law regarding whether deception is allowed to gain entry to land is "largely a mess," and at least one federal district court refused to decide a case involving this factor, claiming there was no clear majority rule among state and federal courts regarding whether deception terminates consent to enter upon land. In that case, undercover reporters, posing as prospective patients, surreptitiously filmed a face-lift clinic (SacharofF 2015, 363 n. 19).

Two pertinent federal circuit court of appeals decisions addressed the problem of access to property through misrepresentation. These cases have also proven pivotal in the constitutional analysis of ag-gag laws in federal courts. First, in Desnick v. American Broadcast Companies, Inc. (1995), the Court of Appeals for the Seventh Circuit held that television reporters' lies did not vitiate the clinic's grant of permission, noting that the goal of trespass is to prevent "interference with die ownership or possession of land"...