Groups challenge Iowa's "ag gag" law in federal court

Two years ago, a federal court in Idaho ruled that state’s “Ag Gag” law unconstitutional, saying the ban on “interference with agricultural production” violated the First Amendment. That ruling pointed to similar problems with Iowa’s law prohibiting so-called “agricultural production facility fraud.”

Today, “a broad coalition of public interest groups” asked a federal court to strike down Iowa’s law under the U.S. Constitution and “enter an order blocking the state from enforcing it.”

The American Civil Liberties Union of Iowa filed the suit, along with other attorneys representing the group of plaintiffs:

The Animal Legal Defense Fund and People for the Ethical Treatment of Animals are national animal-rights organizations. They also joined a federal suit challenging Utah’s “ag gag” law.

Bailing Out Benji is an Iowa-based non-profit working “tirelessly to educate about the horrors of puppy mills.”

Iowa Citizens for Community Improvement challenges various practices associated with “factory farms,” especially confined-animal feeding operations (CAFOs).

The Center for Food Safety is “a national non-profit public interest and environmental advocacy organization working to protect human health and the environment by curbing the use of harmful food production technologies and by promoting organic and other forms of sustainable agriculture.”

The defendants are Governor Kim Reynolds, Iowa Attorney General Tom Miller, and Montgomery County Attorney Bruce Swanson. Why Swanson? Page 15 of the court filing explains,

Defendant BRUCE E. SWANSON is the County Attorney of Montgomery County, Iowa, the site of an egg farm where PETA would conduct an undercover investigation in response to a 2017 whistleblower complaint, but for the Ag-Gag law. As county attorney, Mr. Swanson is primarily responsible for the enforcement of criminal laws in Montgomery County, Iowa by acting as prosecuting attorney on behalf of the State of Iowa. Mr. Swanson is sued in his official capacity.

Iowa enacted the country’s first “ag gag” law in 2012. Bleeding Heartland discussed its troubling features here. I will be surprised if it withstands this challenge.

The Iowa Attorney General’s Office was officially neutral on the final version of the ag gag law, having warned state lawmakers that an earlier draft banning unauthorized audio or video recordings was “clearly unconstitutional.” Iowa legislators ignored advice from Miller’s staff to take a different approach to discourage trespassing at agricultural facilities.

A press release from the ACLU of Iowa’s today lays out the key arguments underpinning the lawsuit. (Scroll to the end of this post to read the full court filing.)

What the Ag Gag Law Does

The law makes it a misdemeanor offense, punishable by up to one year in jail, to make a false statement in connection with obtaining a job at such a facility. It also penalizes “obtaining access” to an agricultural production facility by “false pretenses.”

Before the ag gag law passed, laws already existed that criminalized trespass or fraud or other similar crimes. But the ag gag law now criminalizes access to the facilities by false pretenses and publication of the information found by those means, even when there is no harm or injury to the facility investigated.

Now, only speech criticizing the agricultural industry is targeted in this manner, differently from all other subject matters. That sort of targeting of one specific area of speech by the government is a violation of the First Amendment.

The ag gag law is particularly disturbing, too, because of the way that it inhibits the ability of journalists or watchdog organizations to collect and publish important information. The law could penalize a reporter or investigator merely for not stating that they are a reporter or investigator and that they are there to collect information at an ag facility, if they let the assumption go uncorrected that they were there for some other purpose. That’s because the law makes gaining entry to an agricultural facility under “false pretenses” a criminal offense, and subjects those who conceal a source’s identity subject to “accessory after the fact” liability when the source gained entry by those means.

Many worthy advocacy organizations rely on collecting information, photos, and videos of conditions inside agricultural facilities to accomplish their public interest work. Iowa’s ag gag law has meant that they no longer can investigate or report on specific facilities using undercover means—typically necessary to gain access—even when they receive information from whistleblowers about violations of food safety, workers’ rights problems, environmental harm, or animal cruelty.

Ag Gag is Silencing Public Advocates

“An especially grievous harm to our democracy occurs when the government uses the power of the criminal laws to target unpopular speech to protect those with power—which is exactly what this law is about. Ag gag clearly is a violation of Iowans’ First Amendment rights to free speech,” said Rita Bettis, ACLU of Iowa legal director. “It has effectively silenced advocates and ensured that animal cruelty, unsafe food safety practices, environmental hazards, and inhumane working conditions go unreported for years. Its time has finally come to be stricken from state law.”

Statistics show that Iowa’s ag gag law has succeeded in hindering free speech and stamping out exposés of the industry. In the years leading up to the passage of the law in 2012, there were at least ten undercover investigations of factory farms in Iowa. Since the law’s passage, there have been none.

In Idaho and Utah, similar ag gag laws have been struck down as unconstitutional.

14th Amendment Issues Also Raised

Besides First Amendment concerns, the bill also raises Fourteenth Amendment concerns of equal protection, because ag gag was motivated by legislative animus toward animal rights organizations and singled them out from exercising their free speech rights.

Mindi Callison, founder of Bailing Out Benji, said “Ag Gag has set a dangerous precedent in silencing the public when it comes to speaking out about injustices. Now more than ever it is important to give a voice to those that have none and make sure that commercial dog breeding facilities are complying with the laws.”

Adam Mason, State Policy Organizing Director at Iowa Citizens for Community Improvement, said that “because of underfunded and understaffed state agencies, the job of being watchdogs for our environment and for worker safety too often falls on everyday Iowans, such as those involved in ICCI. The factory farm industry knows how effective these citizen advocates can be and fought for this ag gag law in order to silence them and others. We’re proud to join this lawsuit to roll back this special protection for ag facilities, the only type of industry in Iowa that has this egregious law blocking people from shining a light on its practices.”

Animal Legal Defense Fund Executive Director Stephen Wells said, “Iowa is trampling civil liberties for the benefit of an industry. Each American has a right to know what goes on at factory farms—especially in Iowa, which is the second highest state in agricultural production, and the source of nearly a third of the country’s pigs.”

Undercover investigations are one of the few ways for the public to receive critical information about animal agriculture operations. A 2012 consumer survey conducted by Purdue University’s Department of Agricultural Economics and Department of Animal Sciences found that the public relies on the information gathered and presented by animal protection groups and investigative journalists more than they rely on industry groups and the government combined.

The impact of Iowa’s ag gag law in silencing that information goes beyond the plaintiffs in this case and extends throughout the state and country.

Iowa is by far the country’s biggest producer of pigs raised for meat and hens raised for eggs, along with millions of cows, chickens, turkeys, and goats raised in the state. Agricultural production facilities employ tens of thousands of workers, and have a significant environmental impact.

Additionally, puppy mills have flourished in Iowa, typically located on agricultural land, with Iowa unfortunately having been categorized as a haven for problem dog breeders by the U.S. Humane Society.

UPDATE: Iowa’s law has been on the books for five and a half years. Why are advocacy groups challenging it now? I had the impression opponents were waiting for an Iowan to be prosecuted under the law, but that hasn’t happened. More likely, the July ruling on Utah’s ag gag law inspired opponents to press ahead with this lawsuit. U.S. District Court Judge Robert Shelby found that Utah “undoubtedly has an interest in addressing perceived threats to the state agricultural industry, and as history shows, it has a variety of constitutionally permissible tools at its disposal to do so. Suppressing broad swaths of protected speech without justification, however, is not one of them.” The law was not designed to serve any “compelling state interest,” nor was it “narrowly tailored,” which would be required for a content-based speech regulation to survive “strict scrutiny.” Although Utah’s representatives claimed those who lie to obtain access to livestock operations could present a safety threat, they “provided no evidence that animal and employee safety were the actual reasons for enacting the Act, nor that animal and employee safety are endangered by those targeted by the Act, nor that the Act would actually do anything to remedy those dangers to the extent they exist.

Attorney General Miller didn’t ask for Iowa’s ag gag law. I don’t envy the lawyers who will be charged with defending it in court.

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