Ag Gag Laws: A National Epidemic Threatening the First Amendment

By Bill Ketzer

Introduced in January 2013, House Bill 110 in New Hampshire sought to impose mandatory reporting requirements on any person witnessing or recording an act of animal cruelty committed against livestock. These efforts are commonly referred to as “Ag Gag” bills[1], which seek primarily to criminalize the act of documenting animal cruelty, environmental and other violations on farms. A nationwide epidemic, Ag-Gag legislation has been proposed in 16 states, including New Hampshire, since last year.

Criminalizing this investigative activity not only cripples the ability of investigators to successfully prosecute animal abuse — it is a serious affront to tenants of First Amendment jurisprudence protecting the freedom of the press. Fortunately, due to an outpouring of public opposition and the statewide efforts of animal protection, environmental, prosecutorial, civil liberties and other organizations, H.B. 110 was finally tabled two weeks ago. If passed, the measure would have required any person witnessing cruelty to livestock (including poultry) to report such cruelty to authorities within 48 hours, and also disclose whether they had recorded evidence of such acts at that time. Further, that person would have been required to maintain an unedited copy of any photographic or video evidence for 60 days.

As such, the bill would have essentially required witnesses to become an extension of law enforcement, and dissuaded the reporting individual from any further dissemination of photos and videos of alleged acts in their possession. Thus anyone in possession of such evidence failing to meet the 48-hour reporting deadline would face competing interests: expose the cruelty, while also exposing oneself to criminal liability for the reporting delay. Although H.B. 110 provided an affirmative defense against prosecution for an individual failing to report because he or she believed they were criminally liable for the conduct of the actor committing the cruelty, this “protection” was a thinly-veiled attempt to appease farm interests and clearly demonstrates that whistleblowers and undercover journalists were the targets of the legislation all along.

The Seventh Circuit held in Desnick v. American Broadcasting Cos., Inc. that although newsgathering is generally not privileged against torts or crimes, if newsgathering is found to not violate any torts or crimes, then there is generally no legitimate way to prevent it from occurring.[2] Ag Gag laws like H.B. 110 effectively attempt to stamp out newsgathering by whistleblowers and investigative journalism endeavors. Currently, forty states have shield laws that protect journalists from being forced to reveal their sources. Mandatory reporting requirements would eviscerate these protections and seriously decrease the likelihood of any witnesses to cruelty coming forward for exposure to criminal liability. Without these guarantees of anonymity, cruelty and substandard farm practices would be allowed — if existing — to persist unchecked. Indeed, all “Ag Gag” bills are detrimental to the important role whistleblowers play in our society by insuring quality control and holding businesses accountable.

Furthermore, the specific targeting of individuals engaged in expressive activity is without the stringent requirements necessary to justify infringing on First Amendment rights, and therefore cannot pass Constitutional muster. One such requirement is a demonstrable compelling government interest — a standard which many Ag Gag bills cannot satisfy. As the Supreme Court recently held in United States v. Stevens [3], overbroad statutes that excessively infringe upon protected expression, even depictions of animal cruelty, impermissibly violate the First Amendment. As the Court made clear, the government is free to criminalize the actual cruelty but cannot regulate the recorded evidence to the point of violating the First Amendment, as H.B. 110 attempted to do.

Ultimately, all “Ag Gag” efforts attempt to circumvent the protections afforded to both citizens and journalists by the First Amendment under the guise of promoting the swift recognition and rectification of animal cruelty. The New Hampshire House of Representatives should be commended for recognizing this threat and dealing with it accordingly.

Bill is the Senior Director of State Legislation for the Northeast Region of ASPCA’s Government Relations.