Opening the Barnyard Door: Transparency and the Resurgence of Ag-gag & Veggie Libel Laws

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 4, SUMMER 2015

Opening the Barnyard Door: Transparency and the Resurgence of Ag-Gag & Veggie Libel Laws

Nicole E. Negowetti(fn*)

I. INTRODUCTION

Over the past several decades, as the agricultural system became increasingly industrialized and the steps from farm to plate multiplied,(fn1) consumers became farther removed from the sources of their food.(fn2) Until recently, most consumers in America were content to eat their processed, cheap, and filling foods without giving a second thought to how these foods were produced. The tides are changing. Increasingly, consumers are calling for more transparency in the food system.(fn3) Repulsed by images of animal cruelty and shocked by unsavory food production practices, consumers want the food industry's veil lifted and are demanding changes in food production. The booming success of restaurants such as Chipotle, "the food industry's fastest-rising star,"(fn4) which serves "naturally-raised" meats and is committed to sourcing "Food with Integrity,"(fn5) is evidence of this consumer demand for higher quality food.

Undercover activists and outspoken food system critics can be credited with inciting this food revolution. The agricultural industry is waging war on two fronts in response-one aimed at the market and public opinion, and the other at the legislature. In response to falling earnings, evidence of consumer distrust of "large" companies, and consumer preferences for "natural" foods, "Big-Ag" is attempting to rebrand itself through campaigns which pull back the curtain on the reality of its food production. For example, Alliance for Ranchers and McDonald's have launched transparency campaigns to "open the dialogue" between consumers and producers.(fn6) On the other front, there are efforts to silence those exposing the truth behind the industrial food system and "seeking to raise legitimate questions about the safety of our nation's food sup-ply."(fn7) As consumers increasingly call for more information about where their food comes from and how it is produced, there has been a resurgence of "ag-gag" and "veggie libel" laws, which raise significant First Amendment concerns.

Since the 1990s, the agricultural industry has used various pieces of state-level legislation such as "farm protection" and "agriculture disparagement" laws to limit media. Farm protection, or "ag-gag," laws are crafted to limit access to agriculture facilities, and specifically restrict the use of audio and video recording of working agriculture operations.(fn8) Agriculture disparagement, or "veggie libel," laws are designed to limit what media and individuals can say about agriculture products and production practices.(fn9) Nine states have passed ag-gag laws and thirteen states have veggie libel statutes.(fn10)

In 1998, Professor Bederman wrote:Food libel and agricultural disparagement statutes represent a legal attempt to insulate an economic sector from criticism . . . . In this respect, they may be strikingly successful in chilling the speech of anyone concerned about the food we eat. . . . Scientists and consumer advocates must be able to express their legitimate, even if unproven, concerns. Food libel quells just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, unconstitutional, and undemocratic.(fn11) Decades later, veggie libel laws are still on the books in several states,(fn12) and one has recently been invoked in a high-profile lawsuit.(fn13)

In 2011, the New York Times editorial board expressed similarly strong opposition to ag-gag laws: "The legislation 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. . . . We need to know more about what goes on behind those closed doors, not less."(fn14) Since that criticism was written, five states passed ag-gag laws and five bills were introduced in 2015.(fn15)

This Article discusses the increased call for transparency of the food system by consumers and the resulting resurgence of "ag-gag" and "veggie libel" laws aimed at silencing critics. This Article evaluates the legal measures (enactment of ag-gag and veggie libel laws) and non-legal efforts (marketing and advertising campaigns) in response to those seeking greater transparency in the food system. Although promoting and protecting agriculture is a worthy goal, the means by which the laws attempt to do so violate the First Amendment, which recognizes a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ."(fn16) This Article concludes that the controversy surrounding food production is evidence of the significant public interest in "allowing vigorous and open debate about the industry's practices."(fn17) As Professor Ronald K.L. Collins has argued:As with political expression, public discourse about food needs to be robust in order that diverse and challenging forms of infor-mation-from skeptical opinions to "hard science"-may find expression in the marketplace. This model of communication, so vital to our culture, cannot co-exist with laws designed to silence public criticism of food in order to secure a particular industry's monetary goals. The marketplace of ideas principle malfunctions insofar as the free speech liberties of a community succumb to isolated economic interests.(fn18)

Part II provides an overview of farm protection, or "ag-gag," and food disparagement, or "veggie libel," laws. Part III explains that although trespass and fraud are already crimes, and the majority of states have enacted defamation and product disparagement statutes, these laws have been "re-tooled" as "farm protection" or "food disparagement" laws, which operate uniquely in the context of agricultural production. Part IV discusses the purposes of the laws to evaluate the question of whether the agricultural industry requires special protection. Part V presents recent data regarding consumers' demand for transparency. Part VI evaluates the food industry's efforts to protect its public image through ag-gag and veggie libel laws. This Part summarizes the extensive legal commentary, which overwhelmingly concludes that these laws cannot pass constitutional muster. Finally, Part VII examines the industry's re-branding and transparency efforts and concludes that greater, not less, information about food production is necessary to improve the food system, ensure humane treatment of farm animals, meet consumer demand, and truly protect the agriculture industry.

II. PROTECTING THE AG INDUSTRY: AGRICULTURAL PROTECTION AND DISPARAGEMENT ACTS

A. Ag-Gag Laws

1. Overview of Ag-Gag Laws

In response to break-ins at animal research facilities, the first animal enterprise interference laws were passed in the early 1990s.(fn19) Approximately twenty-eight states have enacted such laws to protect animal facilities from animal welfare activists.(fn20) These state animal enterprise interference laws, along with the federal Animal Enterprise Terrorism Act (AETA) of 2006,(fn21) target physical damage at animal facilities and provide heightened penalties for fraud, trespass, and damage at animal enterprise facilities.(fn22) The animal enterprise statutes in Kansas,(fn23) Montana,(fn24) and North Dakota(fn25) also criminalized unauthorized filming at animal facilities, thus targeting undercover investigations on agricultural operations. Kansas's statute bans taking photographs or video at an animal facility "with the intent to damage the enterprise conducted at the animal facility."(fn26) Montana's statute similarly bans photo or video recording in an animal facility with the intent to damage the enterprise and the "intent to commit criminal defamation."(fn27) In comparison, North Dakota's statute imposes liability for unauthorized use of recording equipment at an animal facility regardless of intent or damages.(fn28)

Since these laws were passed in the 1990s, "almost thirty states have introduced bills banning or restricting undercover investigations surrounding the abuse of farmed animals."(fn29) These "ag-gag" statutes, so called for their purpose and effect,(fn30) have passed in nine states includingMissouri,(fn31) Iowa,(fn32) Tennessee,(fn33) Utah,(fn34) Idaho,(fn35) and Wyoming.(fn36) In January 2015, similar bills were introduced in five states.(fn37)

While all the ag-gag laws are intended to restrict undercover investigations, they take different forms. Generally, the most recent statutes are drafted to include one or more of the following provisions(fn38): the ban of photography/video filming on facility premises (often called bans on "agricultural interference"); the criminalization of securing an agricultural job under fraudulent or false pretenses ("agricultural production facility fraud");(fn39) and mandatory reporting of documented abuse within a short time frame.(fn40)

The influx of ag-gag law proposals across the country has coincided with increased media attention surrounding farming practices exposed by undercover investigations. Undercover investigators and activists often gain access to these facilities by obtaining employment at an agricultural production facility to record and document conditions inside animal farms.(fn41) Since 1998, animal activists have conducted at least seventy-six...