The Eighth Circuit Court of Appeals has issued opinions on two “Ag-Gag” laws, one out of Arkansas and the other from Iowa.
Ag-gag laws attempt to keep whistleblowers and animal activists from having access to the inner workings of agricultural processing facilities. Those would include slaughterhouses and concentrated animal feeding operations, or CAFOs.
The Arkansas law threatens civil sanctions for whistleblowers and investigators. The appeals court found that law to be unconstitutional, in that it stifles free speech. But the court upheld most of an Iowa law threatening criminal sanctions for people who misrepresent their role to gain access to the facility.
Upton Sinclair’s novel The Jungle was published in 1906 and forever changed the meatpacking industry. Sinclair exposed disgusting practices and hazardous conditions that spurred federal action, including the Meat Inspection Act, the Pure Food and Drug Act, and eventually the Food and Drug Administration, or FDA.
Today states across the nation have passed “ag-gag” laws designed to limit access to facilities that conduct animal research, process meat, and raise confined animals. Plaintiffs challenging these laws say the states’ intent is to rein in exposés by activists and journalists.
Ag-gag laws in two of those states, Arkansas and Iowa, are the subject of two opinions by the 8th Circuit Court of Appeals.
The 8th Circuit held a special session in February to hear arguments about the Arkansas law that allows owners of animal production facilities to sue anyone—including activists and whistleblowers—for doing harm to the business.
This legislation was sponsored by DeAnn Vaught, a pig farmer and state legislator.
David Muraskin represents the Animal Legal Defense Fund and Animal Equity at oral arguments. He tells the three-judge panel that activists intended to send investigators into Prayer Creek Farm, owned by DeAnn Vaught and her husband, as well as into Peco Foods, a poultry processor.
But he says those plans were put on hold because of the state law. Activists fearing lawsuits engaged in self-censorship, and as a result, the statute has the unconstitutional effect of chilling free speech.
Muraskin says animal activists have a reason to believe there’s something to find in these two facilities.
He makes two factual allegations about Peco Foods:
“First, that they have increased line speed and second, that they use a slaughter technique known as ‘live hang.’”
And he says DeAnn Vaught’s effort to legislate away any scrutiny suggests there’s something to be found.
“Plaintiffs explain that they wish to reveal what’s going on at DeAnn Vaught’s farm precisely because she sponsored this law.”
Muraskin says the Animal Legal Defense Fund and Animal Equity have fought ag-gag laws across the country, and part of their strategy is to reveal how these laws have been used to suppress facts.
Muraskin is asked why plaintiffs can’t just take what they know and make it public without entering the facility. He replies plaintiffs want video and other documentation as a valuable component of their constitutionally protected political speech.
“They show the information to the public, and they believe that by showing the information to the public, they can build political pressure for change, and that’s what they want to do.”
The Eighth Circuit finds in favor of the plaintiffs, but not unanimously. Judge Bobby Shepherd dissents, saying that plaintiffs’ fears of being sued are just speculative until they take a course of action that results in harm to the businesses, such as prosecutions, food safety recalls, citations, and closures.
According to online sources, Upton Sinclair went undercover in Chicago meatpacking plants to gather information for his novel The Jungle.
Online sources don’t say if he lied to get inside, or lied to get a job, but it follows that he might not have gotten through the door had he announced his intentions.
In Iowa, in 2012, lawmakers made it a crime to gain access or employment at an ag facility by means of false or fraudulent statements. Activists sued, claiming free speech violations.
When looking at the effect of a law challenged on free-speech grounds, the court has to determine if the law bans the content of the speech or the conduct of the speaker.
At oral arguments in September 2020, Assistant Attorney General Jacob Larson defends Iowa’s law.
He says the state is on solid ground when it criminalizes lying to get inside a facility because it is punishing the conduct, the trespassing, not the speech, the lying.
“It’s primarily addressed at conduct that is facilitated by false speech. The false speech is integral to the criminal act that’s occurring. You wouldn’t have a trespass in this case without the false speech.”
In its opinion, the judges agreed and upheld that part of Iowa’s law.
But judges found that the portion of the law criminalizing false statements for employment was too broad because it did not specify that the statements must be material to the hiring process.
At oral arguments, Matthew Strugar represents the Animal Legal Defense Fund and four other organizations.
“There are historical content-based exclusions from the First Amendment.”
Strugar says examples of unprotected speech are threats and obscenity. And he says some forms of dishonesty can carry legal sanctions: perjury, defamation, and fraud, for instance.
He acknowledges that the U.S. Supreme Court’s Alvarez decision specifically mentions lying to gain employment as a punishable offense. But he says that decision doesn’t apply to all statements, such as the kind of puffery an applicant engages in to flatter the boss.
“It seems clear that Justice Kennedy’s talking about an applicant who exaggerates his qualifications to get a job. In that situation, there is a kind of unjust enrichment or some kind of fraud, in such that the employer believes he’s bargaining for something he doesn’t get.”
Strugar says during his arguments that the Iowa legislature passed a new ag-gag law after the lower court enjoined this one, and the new law specifies that the misstatements during job interviews have to be material to be punishable. He says that law is currently tied up in a challenge in district court.
If so, that new law might already offer the fix required by the 8th Circuit Court of Appeals.
As with the Arkansas opinion, this appellate panel voted 2-1, with Judge Raymond Gruender (GRUN-der) dissenting from the court’s finding on employment.
Judge Steven Grasz concurred with the opinion because it is consistent with current law, but he says it “tests the outer boundaries of protection of speech under the First Amendment.”
He says this case might pit investigative journalism against private property rights, and he’s concerned that this opinion opens a new category of speech that the government can punish through criminal prosecution.
Grasz says eventually the Supreme Court will have to decide if such laws can be sustained, or whether they “infringe on the breathing room” necessary to fulfill the promise of the First Amendment.
The ruling of the Court of Appeals applies to the seven states within the 8th circuit, which includes South Dakota.