It’s a classic test for the limits of free speech and the rights of corporations to protect their privacy.
For some time, animal rights advocates in organizations like PETA and the Animal Legal Defense Fund (ALDF) have frequently relied on covert tactics to popularize their positions. Infiltrating factory farms so they can film what they see as squalid, unhealthy conditions for livestock has been a mainstay of these activists.
In 2012, ranchers and factory farm owners successfully lobbied Iowa legislators to ban these undercover operations. Any media obtained by entering facilities under false pretenses could be charged with a misdemeanor.
The legislation has been remarkably effective, curbing all exposes of facilities on factory farms.
Recently, however, a federal court in Iowa struck down the gag law as an unconstitutional infringement of activists’ and whistleblowers’ speech. The state is appealing this decision.
There’s a lot at stake in the ruling for livestock owners and activists alike. Both sides argue they want to respect the right to free speech, but should this speech be limited by the right to privately-held businesses’ right to privacy on their own properties?
Owners of factory farms contend their request shouldn’t be construed as limiting speech, but as protecting the sanctity of private property.
Would it be acceptable to enter someone’s house by lying about one’s identity, filming what was there, and then broadcasting what was there without that person’s permission? Most homeowners would be horrified at this prospect, and view it as a violation of their privacy. Any consent to enter and film obtained on fraudulent pretexts wouldn’t count. Many would consider this criminal trespassing.
Furthermore, anything that happens to the activists or the animals they’re filming becomes legally problematic. If a pig injures a filmer who misrepresented their identity and got access to the facility, who’s legally liable for damages?
So it’s understandable that many companies who raise livestock don’t like these undercover operations. They say filming without permission is a dishonest way to get around owner consent and smear their reputations. On their side is legal precedent. Supporters of the gag rule point to the Food Lion case, which ruled journalists gaining access to private facilities on false pretences are not protected by the First Amendment.
Activists see it quite differently. They maintain that the Food Lion precedent doesn’t apply, since that ruling depended on the judge’s opinion that newspaper reporters could have uncovered the same truths without entering on fraudulent premises. That’s simply not the case with the ag-gag law.
In fact, they argue, it’s likely that upholding the legality of the statute would render any undercover journalism constitutionally dubious. It would be a clear victory for corporations, who could shield themselves from public scrutiny. The losers would be not only individuals’ and groups’ right to free speech, but the welfare of citizens. The public has a right to know what goes on in the facilities that raise and slaughter animals, and they’re not likely to get the truth unless activists reveal these conditions–even if those activists have to lie to get in the door.
It’s shaping up to be a hard-fought case, with potentially significant consequences both for ag producers and watchdog agencies.