Factory Farms v.s. Whistleblowers: Agricultural Gag Laws that Hide Animal Cruelty

Upon opening Iowa Select Farms’ main website, viewers are greeted by a heartwarming image of light shining through a cornstock field, with the words “Producing Pork Responsibly” centered in an elegant font atop the greenery. [1] When the rare curious consumer scrolls down, Iowa Select Farms assures them, “We believe in doing the right thing every day, operating with character and integrity and being stewards of our resources.” However, like other U.S. factory farms, their definition of “character and integrity” is vastly different from that of those reading their mission statement. To Iowa Select Farms, “Producing Pork Responsibly” means sanctioned tail cuttings, castrations without anesthesia, and smashing piglets against concrete floors. [2] Meatpacking in the U.S. accounted for $1.02 trillion in economic output and generated $256 billion in wages in 2016. [3] Further, due to the cultural fixation on and societal expectation of a meat-eating diet, the U.S. has developed a heavy reliance on factory farms, with an approximated 99% of livestock living at factory farms. [4] However, with great reliance comes an even greater focus on efficiency, a focus that undervalues ethical production methods in order for companies to meet the dietary demands of today’s society while still maximizing profit. From ‘saving space’ by decreasing cage and pen sizes to the point where animals can no longer move, to killing livestock without anesthesia, the prioritization of efficiency over ethics has become evident in recent years. But, where is the line drawn between humanity and the desire to profit in the slaughterhouse industry? Consumers remain in the dark about such abuse unless advocates take deliberate actions to bring farm conditions to light— that is where factory farm whistleblowers come in.

Advocates from Mercy for Animals, a nonprofit that works to expose poor factory farm conditions, discovered the inhumane conditions in the Iowa Select Farms case by gaining farm access through employment, the most common means for advocates to do so. Investigations like this inherently rely on application misrepresentation because advocates' goals threaten slaughterhouse workers and farm managers; access to facilities would be unattainable if their identities were revealed. Following publicized investigations uncovering abuse at various industrial farms, twenty-five impacted states tried to pass agricultural protection laws known as ag-gag laws – since these agricultural laws “gag” whistleblowers – which criminalize recording and photographing farm conditions without consent, misrepresenting one’s identity with the purpose of gaining farm access, and entering food operations without consent. Politicians are able to pass gag laws due to legal interpretive loopholes and by hiding anti-whistleblower goals within broader political purposes. Despite circuit courts striking these laws down for their disregard for the First Amendment, six states have succeeded in repeatedly passing different versions of gag laws  — Iowa, Utah, Missouri, Idaho, Wyoming, and North Carolina. [5] Federal intervention preventing the passing of gag laws is a long overdue step to protect whistleblowers’ First Amendment rights, uphold animal rights, and avoid the shortcomings that arise when states operate within the legal gray area created by circuit court rulings regarding gag laws.

Ag-gag proponents argue that gag laws protect private property and are needed to prevent bioterrorism; they fear the possibility that extremists could obtain employment in order to spread infectious diseases to the animals. As Iowa State Senator Ken Rozenbloom explained, “Those of us in animal agriculture lose sleep over the thought of certain foreign animal diseases that could devastate our farms…” [6] Such claims, however, veil lawmakers’ intent to defend factory farms from criticism; Rozenbloom himself owns a pig farm that, following an undercover investigation by activists, has been accused of animal abuse and neglect. [7] Existing private property laws, particularly civil and criminal trespassing, already criminalize trespassing and hold violators liable for the value of damage done. Ag-gag legislation, if meant for this purpose,, is therefore redundant, by creating similar provisions exclusively for food operations. As Iowa Representative Liz Bennet said, “Criminalizing whistleblowing shows an absolute contempt for concerned consumers and a fundamental insecurity over the product and methods used.” [8]

In 1990, Kansas passed the first ag-gag law in America, the Farm Animal and Field Crop and Research Facilities Protection Act. It stated that “(c) No person shall, without the effective consent of the owner and with the intent to damage the enterprise conducted at the animal facility … (4) enter an animal facility to take pictures by photograph, video camera or by any other means,” and set criminal penalties to punish those who do so. [9] The law specifically targets methods that undercover investigators use, revealing the laws’ underlying interests that target whistleblowers and not, as some assert, bioterrorism. As Kansas produces 11% of the nation’s red meat, this law had an immense impact in preventing the investigation of routine mutilations and extreme confinement of millions of animals in Kansas factory farms. [10] After over thirty years, following Animal Legal Defense Fund et. al. v. Laura Kelly, Governor of Kansas, et. al. (2021), the U.S. Court of Appeals for the Tenth Circuit ruled that Kansas cannot prevent the public from taking photographs or recordings of animal agriculture, even if there is intent to damage the business. [11] Although attempts have been made to revive the law or certain parts of it, the 10th U.S. Circuit Court of Appeals has rejected such requests on grounds of them being viewpoint discriminatory. [12] While this has deterred ag-gag laws in Kansas, the federal court ruling only discusses obtaining electronic evidence of abuse and does not explicitly protect efforts to do so, such as gaining access to farms. [13] With a broader federal court ruling applicable to all states that addresses both electronic evidence and the employment efforts to obtain such evidence, ag-gag laws would not be a prevalent problem that persists within courts today. 

Iowa is also notable for its persistence in passing ag-gag laws. In 2012, Iowa passed its first ag-gag law, the Agricultural Production Facility Fraud law (Iowa Code § 717A.3A), which included the criminalization of willfully making “a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility.” [14] This law was eventually challenged by groups including the Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing Out Benji, and People for the Ethical Treatment of Animals, who petitioned on the grounds that “the legislative purpose was to punish animal rights groups and curtail a form of political speech of great public concern.” [15] In Animal Legal Defense Fund v. Reynolds the United States District Court for the Southern District of Iowa found this employment provision to be unconstitutional due to an infringement on free speech rights, with the reasoning that the right to make the types of deceptive statements or harmless lies implicated in the Iowa law is “protected by our country’s guarantee of free speech and expression.” [16] The language of this provision was examined under the strict scrutiny test, which is a high standard of judicial review where a law that violates a constitutional right must be narrowly tailored using the least restrictive means to achieve a compelling state interest of the government. The court determined that the provision was too broad and therefore overly-restrictive and unconstitutional and this was later affirmed by the Eight Circuit. [17] Although this was a positive advancement for animal advocates and progress since the Kansas case, it does not prevent the passing of similar laws, which is the unaddressed root of this issue.

Two months after the 2019 overturning of the 2012 Agricultural Production Facility Fraud law (2012), Iowa passed an amended version of the law, Agricultural Production Facility Trespass (2019) (Iowa Code §717A.3B), which contained only few differences from the original. The 2019 law prohibited deception that would cause a “denial of access to an agricultural production facility” and still criminalized access/employment gained through misrepresentation. [18] However, it added that there must be “intent to cause physical or economic harm or other injury to the agricultural production facility’s operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.” [19] In this case, there was no federal court ruling that reprimanded the law’s second clause regarding employment gained through misrepresentation (as there was with video evidence in Animal Legal Defense Fund et. al. v. Laura Kelly, Governor of Kansas, et. al.), and so this amended version is legally permissible due to a lack of overarching precedent. The amended version keeps the same effect while adding the condition of harmful intent, therefore making it still unconstitutional based on the same grounds of free speech protections — those with certain points of view (animal advocates) cannot be kept out through targeted legislation such as this, since content-based viewpoint discrimination is unconstitutional. Investigations could potentially violate other laws for which those undercover could be prosecuted, but states cannot attempt to single out and punish particular individuals because of their viewpoint that critiques farm practices — the First Amendment requires speech restrictions to be viewpoint neutral. The 2019 version of the law was declared unconstitutional on March 14th, 2022, but factory farm animal advocacy efforts were once again halted during the years in which the law held effect. [20]

Newer versions of ag-gag legislation are repeatedly passed in many agriculture-heavy states because there is no specific federal legislation protecting the publication of images that can cause harm to an organization with the intent of revealing the truth to the public, or gaining employment with the intent to critique a company. Although the freedom of speech protects actions such as these, circuit courts do not always effectively consider this protection. In too many cases, opportunistic bureaucratic officials on state levels legislate with bias impacting their decisions. However, like the Iowa Agricultural Production Facility Fraud law (2012), some ag-gag legislation can eventually be overturned as they pose an infringement upon freedom of the press — but that is only if other members of a court recognize the unjustness within its intent and take action to remove such laws, the public garners enough political capital by rallying against such laws, or new members of government are elected who recognize the negative intention of ag-gag legislation. Furthermore, the duration in which ag-gag legislation are in effect halts the uncovering of animal cruelty at factory farms as gathered evidence through those then illegal methods are not admissable in court. In order to uphold First Amendment rights and prevent investigations and public advocacy on these matters from being deterred or halted, the passing of a federal law that will protect misrepresentation during farm employment if the intent is to expose potential cruel conditions, and enforce the protection of the right to photograph and record farm conditions, regardless of harm caused to farm businesses, is imperative. Direct federal involvement that explicitly protects whistleblowers' actions will eliminate state governments from disregarding the scope of the First Amendment’s protections in these situations by allowing watered down versions of laws (as they would still be in violation of the supposed federal legislation on this matter) ultimately preventing the current-era cycle of passing and overturning these laws.

Ag-gag laws curb free speech and perpetuate illegal abuse, which the court system is designed to empower and eliminate, respectively. Advocates publicizing unethical farm conditions creates valuable public concern that pressure for improvements within industry practices. Following publicity around hens’ inhumanely small living conditions at numerous factory farms, public concern helped cause a “shift in the last 10 years of 4% of eggs coming [from] cage-free hens to 28%,” a trend that is predicted to significantly increase within the coming years. [21] And more directly, whistleblowers’ actions in absence of ag-gag laws led corporations to shift towards more ethical suppliers. In the case of advocacy group Mercy for Animals’ publication of undercover footage from Sparboe Egg Farms in Iowa, Minnesota, and Colorado, ties between the farm and McDonald’s Corp. were cut. [22] Implemented federal legislation specifically prohibiting ag-gag laws would help stop corporate agriculture’s abuses, aid in upholding the First Amendment rights of whistleblowers, and work back towards protecting animals, food safety, and environmental standards.

edited by Amogh Dimri

[1] Iowa Select Farms, “Producing Pork Responsibly,” Iowa Select Farms, 2022, https://www.iowaselect.com.

[2] Anne-Marie Dorning, “Iowa Pig Farm Filmed, Accused of Animal Abuse,” ABC News, July 29, 2011, https://abcnews.go.com/Business/iowa-pig-farm-filmed-accused-animal-abuse/story?id=13956009.  

[3] “The United States Meat Industry at a Glance,” North American Meat Institute, 2022, https://www.meatinstitute.org/index.php?ht=d/sp/i/47465/pid/47465.

[4]  Jacy Reese Anthis, “US Factory Farming Estimates,” Sentience Institute, April 11, 2019, https://www.sentienceinstitute.org/us-factory-farming-estimates

[5] “Ag-Gag Across America, Corporate-Backed Attacks on Activists and Whistleblowers,” Center for Constitutional Rights and Defending Rights & Dissent, 2017, https://ccrjustice.org/sites/default/files/attach/2017/09/Ag-GagAcrossAmerica.pdf

[6] Ken Anderson, “Iowa Legislators Pass New ‘Farm Trespass’ Bill,” Brownfield AG News, March 13, 2019, https://brownfieldagnews.com/news/iowa-legislators-pass-new-farm-trespass-bill/.

[7] Donelle Eller, “Animal rights group claims animal neglect at farm of Iowa senator who backed ag-gag law,” Des Moines Register, January 24, 2020, https://www.desmoinesregister.com/story/money/agriculture/2020/01/24/animal-rights-group-claims-neglect-pigs-iowa-farm-ag-gag-supporter/4545787002/

[8] Anderson, “Iowa Legislators Pass,” Brownfield AG News, 2019.

[9] Kansas Office of Revisor of Statutes, 47-1827, May 25, 1990, https://www.ksrevisor.org/statutes/chapters/ch47/047_018_0027.html.

[10] “Kansas 2021 Ag Summit, Beef,” Kansas Ag Growth, 2021, https://agriculture.ks.gov/docs/default-source/ag-growth-summit/2021-growth-documents/beef.pdf?sfvrsn=15c296c1_8.

[11] Animal Legal Defense Fund, et al. v. Kelly, et al., 434 F.Supp.3d 974 (10th Cir 2021)

[12] Roxana Hegeman, “Appeals court blocks enforcement of Kansas’ ‘ag-gag’ law,”AP News, August 20, 2021, https://apnews.com/article/business-courts-kansas-1d6b49724d11eb58ce619f33aa7ea32c

[13] Animal Legal Defense Fund, et al. v. Kelly, et al., 434 F.Supp.3d 974 (10th Cir. 2021)

[14] Iowa Government Legislature, Iowa Code 2022, Section 717A.3A, 2021, https://www.legis.iowa.gov/docs/code/717A.3A.pdf.

[15] Kristine Tidgren, “Law Offers Continued Protection to Agricultural Production Facilities,” Iowa State University Center of Agricultural Law and Taxation, March 20, 2019, https://www.calt.iastate.edu/blogpost/law-offers-continued-protection-agricultural-production-facilities.

[16] Animal Legal Defense Fund v. Reynolds, 353 F.Supp.3d 812 (2019); Kristine Tidgren, “Federal District Court Says Iowa's Ag Fraud Statute Unconstitutional,” Iowa State University Center of Agricultural Law and Taxation, January 16, 2019, https://www.calt.iastate.edu/blogpost/federal-district-court-says-iowas-ag-fraud-statute-unconstitutional.

[17] Animal Legal Defense Fund v. Reynolds, 8 F.4th 781 (8th Cir. 2021)

[18] Iowa Government Legislature, Iowa Code 2022, Section 717A.3B, 2021, https://www.legis.iowa.gov/docs/code/717A.3B.pdf.

[19]  Iowa Code 2022, Section 717A.3B, 2021.

[20] Kitt Tovar Jensen, “Federal District Court Finds Iowa’s Agricultural Trespass Law Unconstitutional,” Iowa State University Center of Agricultural Law and Taxation, March 23, 2022, https://www.calt.iastate.edu/article/federal-district-court-finds-iowa’s-agricultural-trespass-law-unconstitutional.

[21] David Pitt, “Federal Judge Finds Another Iowa Ag-gag Law Unconstitutional,” Middle Tennessee State University, March 18, 2022, https://www.mtsu.edu/first-amendment/post/2756/federal-judge-finds-another-iowa-ag-gag-law-unconstitutional.
[22] Tiffany Hsu, “McDonald’s Cuts Egg Supplier After Undercover Animal Cruelty Video,” Los Angeles Times, November 11, 2011, https://www.latimes.com/archives/blogs/money-company/story/2011-11-18/mcdonalds-cuts-egg-supplier-after-undercover-animal-cruelty-video.