STANDING AS A BARRIER FOR CONSTITUTIONAL CHALLENGES TO CIVIL AG-GAG STATUTES.

• Author: Stuy, Lauren

CONTENTS INTRODUCTION I. OVERVIEW OF AG-GAG LEGISLATION A. History of Ag-Gag Legislation B. Ag-Gag's Distinct Trends 1. Ag-Gag's First Wave 2. Ag-Gag's Second Wave 3. Ag-Gag's Third Wave C. Why Ag-Gag Legislation Matters II. STANDING REQUIREMENTS A. General Standing Requirements B. Standing for First Amendment Challenges III. EXAMINATION OF STANDING IN FEDERAL CASES CHALLENGING THE CONSTITUTIONALITY OF AG-GAG STATUTES A. Idaho B. Utah C. Iowa D. Wyoming E. North Carolina IV. UNIFORM TEST FOR STANDING WHEN PLAINTIFFS ALLEGE INJURY BASED ON CHILLING EFFECT OF STATUTE V. MONEY AS A MOTIVATING FACTOR CONCLUSION INTRODUCTION

In 1906, Upton Sinclair's infamous expose of the reality behind the industrial animal agricultural industry shocked the nation. The Jungle chronicled horrific animal cruelty, labor abuses, and health and safety hazards present in America's slaughterhouses at the turn of the century. (1) Over 100 years later, animal activists, environmental protection groups, and other watchdog organizations continue Sinclair's work by going undercover in agricultural facilities to shed light on abusive practices.

The investigation that spearheaded this type of modern covert operation showed workers playing games--games with perverse rules. Farm workers played by slamming chickens against the factory farm's wall--114 chickens in seven minutes to be exact. Other workers jumped up and down on the chickens and ripped their beaks off. Some workers twisted the chickens' heads like a twist-off beer bottle cap and wrote graffiti in chicken blood on the factory walls. Others spat tobacco into the chickens' eyes and mouths and plucked their feathers to "make it snow." Perhaps most disturbingly of all, some workers squeezed the chickens' bodies so hard that feces sprayed over the other birds below, helplessly waiting their turn to play the workers' sadistic game. (2)

People for the Ethical Treatment of Animals (PETA) recorded this footage from an undercover investigator who worked from October 2003 to May 2004 at a Pilgrim's Pride plant, one of KFC's many suppliers and winner of the "Supplier of the Year" award in 1997. (3) Although animal rights groups have long complained about horrific conditions at factory farms--besides the expected slaughter--PETA's video was the first time that graphic proof was made available for the public eye. (4)

Sadly, exposes of workers torturing livestock has proven to be an all-too-common occurrence. Since 2004, thousands of equally disturbing videos have been released from animal rights groups documenting abuse. (5) Investigations have revealed workers sticking clothespins in pigs' eyes, spraying industrial dye in pigs' faces, and killing underweight piglets by smashing their skulls against concrete floors to the amusement of their fellow workers. (6) Another covert video shows farm hands burning Tennessee walking horses with chemicals. (7) Other videos show workers kicking, punching, and stabbing cows with screwdrivers as well as workers electrically shocking the animals' genitalia to force them to move. (8) This abuse is so extreme that few would believe it without documented proof. After all, who would believe that people would brag about sticking cattle prods in cows' eyes just for fun? (9)

It is indisputable that such conduct is horrific--even by slaughterhouse standards. But other conduct that many would deem "abuse" is standard industry practice and not illegal when committed against livestock--a fact which most people are unaware of. (10) Undercover investigations have shed light on such practices and led to food safety recalls and public outrage across the globe in response to the horrific animal abuse witnessed on farms across America. (11)

In response to these exposes, which have bankrupted and closed several large farming companies, (12) legislators backed by powerful agricultural lobbyists have made their disdain clear by passing "ag-gag" laws. As the name suggests, ag-gag laws "gag" whistleblowers from documenting and disseminating abuse witnessed at agricultural facilities by criminalizing undercover investigations. (13) While these laws aim to keep horrific animal abuse out of sight and out of mind from the American public, even more concerning is that these laws attack our nation's fundamental constitutional right to free speech. Ag-gag laws used to be confined to the relatively narrow sphere of animal factory farms; therefore, the laws flew under the radar for Americans without any ties to the agricultural industry or animal activism. Recently, however, these ag-gag laws have expanded beyond the realm of the agricultural realm. With this new expansion, the American public needs to take notice now more than ever.

North Carolina led the agricultural lobbyists' charge to hide factory farm conditions from public awareness and subsequent condemnation by creating a new civil cause of action in 2015. (14) This newest ag-gag model removes criminal penalties and authorizes private employers to sue for draconian monetary damages--up to $5,000 per day plus attorney's fees and court costs (15)--against any employee who "captures or removes" documents from the workplace or records images or sounds of the workplace and then uses this illicit material to violate the employee's "duty of loyalty" to her employer. (16) Arkansas lawmakers followed North Carolina's lead and passed a nearly identical ag-gag statute in March 2017. (17) This type of ag-gag legislation strikes at the very heart of animal activism by harshly penalizing employment-based undercover investigations. (18) While the constitutional merits of such statutes appear dubious in light of recent case law, (19) plaintiffs challenging an ag-gag statute's constitutional validity may be kept out of court entirely for lack of standing. This is exactly what happened in North Carolina's district court in May 2017. (20) Although the Fourth Circuit reversed the lower court's dismissal in June 2018, (21) this litigious battle shows why standing remains a difficult fight for plaintiffs with the threat of draconian penalties halting undercover investigations.

This Note explores the tension between preemptively challenging an ag-gag statute that only imposes civil liability and satisfying the standing requirements necessary to ensure justiciability. This Note investigates how an ag-gag statute imposing only civil liability--but with tremendous monetary penalties--may prevent these statutes from being challenged in court on their merits. Because plaintiffs will find satisfying the standing requirements difficult without exposing themselves to tremendous civil liability, agricultural lobbyists may have found an effective loophole to keep potential whistleblowers out of their facilities. Allowing these ag-gag statutes to go unchecked means hidden abuse, compromised food safety, and undermined constitutional rights.

Part I explains ag-gag development from its "domestic terrorism" origin to the restrictive whistleblower statutes of today as well as providing a background into animal activists' undercover investigations. Part II reviews general standing requirements as well as the standing standard for First Amendment challenges, which are the main focus of constitutional challenges to ag-gag statutes. Part III examines standing in the recent federal cases challenging the constitutionality of ag-gag statutes from the Ninth, Fourth, Eighth, and Tenth Circuits. Part IV argues that federal courts should adopt the Tenth Circuit's standing test for plaintiffs alleging injury based on a statute's chilling effect on speech. Part V argues that money is the key motivating factor behind the threat of prosecution under the civil aggag statutes.

1. OVERVIEW OF AG-GAG LEGISLATION

   A. History of Ag-Gag Legislation

   Former New York Times columnist Mark Bittrnan coined the term "ag-gag" in 2011 to describe lawmakers' efforts to criminalize and impede undercover investigations of agricultural facilities. (22) Ag-gag laws, however, are not a new tool for legislators to use as a way to shield animal industries from the public's watchful eye. The 1980s and 1990s saw "politicians, law enforcement, and big business [promoting] a narrative of an industry under siege by 'eco-terrorists' and 'animal rights extremism.'" (23) This intense scrutiny of animal activist groups has been called the "Green Scare," referencing the "anti-communist hysteria of the 'Red' Scares" of the Cold War era. (24) In 1988, the FBI first labeled an act by an animal rights activist as "domestic terrorism" and added the Animal Liberation Front, an animal activist group with a track record of zero human injuries or deaths, to its '"Terrorism in the United States' report." (25)

   During the 1980s and 1990s, animal rights groups began conducting undercover investigations to expose and draw awareness to the widespread animal cruelty present in agriculture, laboratories, fur industries, and entertainment. (26) PET A spearheaded this movement when PETA co-founder Alex Pacheco accepted a position at a research lab and photographed the conditions of the test monkeys. (27) Pacheco's photos showed horrific conditions: starving monkeys picking through feces for food; fingers ripped from the monkeys' hands from being snagged on the rusted cage bars; cages caked in feces and filth; and experimental methods that could inspire a Stephen King horror movie. (28) Pacheco's work led to the nation's first lawsuit originating from undercover footage that documented animal abuse. Similar undercover investigations on horse slaughterhouses, factory farms, and furriers followed throughout the 1980s and 1990s. (29)

   B. Ag-Gag's Distinct Trends

   1. Ag-Gag's First Wave

      States began to take notice of these undercover investigations and responded by drafting the nation's first wave of ag-gag legislation. This first wave of ag-gag legislation focused on intentional property damage and non-consensual entry into a...