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January 2024 Animal Law Updates: Sometimes We Take a Loss

Author Bio

Jareb Gleckel received his J.D. magna cum laude from Cornell Law School and his B.A.... Read More

The First Amendment and Ag-Gag Laws

Most people in the U.S., whether on the Right or the Left politically, place value on free speech. So it’s a good thing our Constitution does as well. The First Amendment says that “Congress shall make no law . . . abridging the freedom of speech.” Judges, in turn, while typically not vegan or even concerned with animal welfare, can recognize the importance of protecting the right to speak out about the harms of factory farming, and protecting the right to protest the agriculture industry.

Against this backdrop, it makes sense that lawyers have continuously found success challenging “ag-gag” laws: laws that “gag” speech about the agriculture industry. In March of 2023, I wrote about the most recent successful challenge to a North Carolina ag-gag law. Before that, in September 2022, I wrote about a successful challenge to an Iowa ag-gag law. Sadly, this month, the federal appeals court for the Eighth Circuit overturned the ruling on Iowa’s law, rejecting the argument that the law violates the First Amendment of the Constitution, and allowing it to continue “gagging” Iowa investigations.

How Iowa’s Ag-Gag Law Works

The easiest ag-gag laws to challenge have been those that singled out speech against agricultural facilities. That’s because, under First Amendment jurisprudence, courts are most skeptical of laws that suppress specific viewpoints. Compare, for example, a law prohibiting late-night use of loudspeakers at a neighborhood park (a so-called “time, place, and manner” restriction) with a law prohibiting speech criticizing Democratic candidates. The latter law, which targets a viewpoint, is far more dangerous because it enables the government to control access to information and impairs democracy. That’s why even the most vile “hate speech,” like speech supporting Nazis, receives protection.

Iowa has passed several iterations of ag-gag laws, and this latest version was the hardest to challenge because it is at least feigned neutrality. Rather than going after agricultural investigations specifically, Iowa enacted a “trespass-surveillance law” to penalize anyone who, while trespassing, places or uses a recording device on the property. While Iowa laws already (1) prohibit trespassing, and (2) prohibit types of recording, such as through “peeping tom” laws and “invasion of privacy” laws, Iowa’s “trespass-surveillance” law has far more severe penalties than ordinary trespass laws. The Eighth Circuit ruled that, despite Iowa having these other laws in place, the ag-gag law serves a significant government purpose in protecting property and privacy and does not burden more speech than necessary to protect these interests.

Ag-Gag Law Upheld: What this Means (and What it Doesn’t)

There’s no way around it — the Eighth Circuit opinion is a bad one for animals and undercover investigations, and sometimes we take a loss. The Iowa ag-gag law makes it far more risky to investigate agricultural facilities in Iowa, and therefore to get footage like my favorite investigation clip (non-graphic) of a Tyson worker in Virginia talking about the hoax of free-range labeling:

Source: Animal Outlook/YouTube

Still, the Eighth Circuit opinion is not the worst-case scenario. First — while a technical distinction — the Court only ruled that Iowa’s law is not “facially” unconstitutional. There may still be room to limit the scope of the law by arguing, for example, that it is unconstitutional as applied to certain investigative activities. Second, the Eighth Circuit ruling is only binding in federal courts in seven states. Other jurisdictions can still strike down similar laws in other states, protecting the rights and the important work of undercover investigators.

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