Shooting the messenger: a common-sense analysis of state "ag-gag" legislation under the first amendment.

• Author: Adam, Kevin C.
• Position: Restricting undercover investigations of violations of farming facilities

"As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy. ...

The only time I ever refused to sample my brothers' culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn't an idiot." (1)

1. INTRODUCTION

   Leslie Hatfield's quote raises a simple question--what did her brother have to hide? (2) As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America. (3) Despite its major role in providing food to the public, the factory-farming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. (4) To date, the most common means of exposing these concerns is through undercover investigations--activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. (5) These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. (6) In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws. (7)

   Critics of the proposed legislation have commonly referred to the statutes as "whistleblower suppression" laws, while supporters have referred to them as "animal interference" laws, but it was Mark Bittman, of the New York Times, who coined the most popular term--"ag-gag" laws. (8) As of the publication of this Note, five states have "ag-gag" laws on the books, while eight other states are either considering or have recently rejected similar legislation. (9) "Ag-gag" laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the job-application process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos. (10)

   This Note will focus primarily on the second and third categories of "ag-gag" legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. (11) Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether "ag-gag" laws amount to impermissible, content-based restrictions on speech. (12) Additionally, this Note will consider whether "ag-gag" laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. (13)

   Part II.A of this Note will discuss the First Amendment, focusing specifically on content-based restrictions on speech and the prior-restraint doctrine. (14) Next, Part II.B.1 will provide an overview of the factory-farming process, discussing some of the most notable concerns raised by the operation of these large facilities. (15) Part II.B.2 will provide examples of four specific undercover investigations that have exposed animal-abuse and food-safety concerns. (16) Next, Part II.C will discuss existing and proposed "ag-gag" legislation before moving on to a brief description of the Animal Enterprise Terrorism Act (AETA), a federal law that punishes animal interference. (17) Part III.A will then analyze "ag-gag" legislation under the First Amendment, applying the principles outlined in Part II.A to the current landscape of "ag-gag" legislation. (18) Lastly, Part III.B will discuss whether "ag-gag" legislation is even effective, or whether farm owners would be better served pursuing punishment under currently existing modes of criminal and civil law. (19) Part IV will conclude that current "ag-gag" legislation is either unconstitutional or ineffective, and that existing laws--trespass, wiretapping laws, and libel--would be a more appropriate means of punishing the inappropriate conduct of undercover investigators. (20) Pursuing legal recourse under existing laws, as opposed to passing legislation that bars photography and videotaping on factory farms, will be similarly effective in deterring illegal investigatory tactics while avoiding the question raised by Leslie Hatfield--what do factory farms have to hide?

2. HISTORY

   1. The First Amendment

      The First Amendment of the United States Constitution declares, "Congress shall make no law ... abridging the freedom of speech, or of the press." (21) Such constitutional guarantees of free speech prevent the government from restraining or prohibiting protected speech or expressive conduct, while protecting the citizenry from governmental suppression of ideas by allowing issues to be openly and vigorously discussed. (22) Although the First Amendment applies to the federal government, the Fourteenth Amendment imposes the same restraints on the states; the First Amendment operates as a check on governmental powers, and it imposes the same limitations on speech restrictions on the states as it does the federal government. (23) Underlying the First Amendment is the core principle that government, be it state or federal, cannot prohibit speech or expression simply because some may consider it offensive or disagreeable. (24) But this only raises the question--what, exactly, is considered speech?

      The reference to "speech" in the First Amendment may appear, at first glance, to apply only to spoken words or verbal communications. (25) But for purposes of First Amendment protection, speech has been defined simply as "expressive conduct" or "communication." (26) For example, one person may speak out against the government by making a billboard or publishing an article in the newspaper, while another may publicly burn the American flag. Both approaches, although different modes of conveying a similar message, constitute expressive conduct and are considered speech under the First Amendment. As such, an activity need not necessarily embody a narrow message, but the court must find, at a minimum, the intent to convey a particularized message along with a strong likelihood that those viewing it will understand the message. (27) Because the government cannot abridge the freedom of speech, First Amendment analysis is often less about what a person can or cannot do or say, and more about whether the government has the power to employ a law that bars that speech. (28) This section will first analyze, specifically, whether photography or videotaping falls within this broad definition of protected speech, before moving on to address what type of speech the government can or cannot restrict under the prior-restraint doctrine and the well-established "time, place, manner" restrictions. (29)

      1. Right to Photograph and Videotape

         To date, the United States Supreme Court has yet to directly define a photographer or videographer's rights with respect to the First Amendment, raising a predictable question--is there a First Amendment right to photograph or videotape? (30) Quite simply, it depends. Instead of directly addressing whether there is a right to photograph or videotape, the courts have generally taken a case-by-case approach, determining "whether the conduct possesses sufficient communicative elements to bring the First Amendment into play." (31) In Texas v. Johnson, (32) the Supreme Court analyzed photography as a means of communication worthy of protection under the First Amendment, applying a two-prong test to determine if conduct possesses sufficient communicative elements. (33) Under Johnson, a person's conduct must be intended to convey a particularized message, and there must be a great likelihood that those who view it will understand that message. (34) In 1995, the Court applied this same test in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, (35) again requiring the plaintiff to demonstrate that he possessed a message to be communicated and an audience to receive that message, regardless of the medium in which the message is to be expressed. (36)

         Therefore, in analyzing whether photography or videotaping is protected as speech under the First Amendment, the key issue is whether the conduct--taking a photo or shooting a video--satisfies both prongs of a sufficient communicative effort. (37) In Porat v. Lincoln Towers Community Association, (38) the plaintiff, Porat, was photographing the Lincoln Towers, when a security guard approached and asked him what he was doing--the Lincoln Towers had a management policy that barred nonresidents from photographing the building. (39) Porat responded that he was taking photographs for recreational use. (40) After being detained by the security guards and issued a ticket by the police for trespass, Porat filed suit in the Federal District Court for the Southern District of New York, claiming his First Amendment rights were violated when he was issued a ticket in retaliation for exercising conduct protected by the First Amendment. (41) The district court found that although "communicative photography is well-protected by the First Amendment," Porat had clearly denied having any communicative interest in the photography. (42) As such, Porat failed to meet either element of First Amendment-protected, communicative speech--his photography was not intended to be communicative, and there was no audience to view it. (43) Quite simply, the...