‘Ag-gag’ reflex

State legislatures are pushing to stifle farm investigations, and some news associations are fighting back

FAIRWAY, KS — On Feb. 8, Amy Meyer, a 25-year-old activist, recorded cell-phone video of activities at a slaughterhouse in a Salt Lake City suburb. Eleven days later she was informed, much to her surprise, that she was being prosecuted for a Class B misdemeanor under a new Utah state law prohibiting “agricultural operation interference”—an offense that could mean up to six months in jail.

Meyer was the first person in the country to face prosecution under the so-called “ag-gag” laws, which are designed to limit the ability of animal-rights groups to interfere with—or even investigate—agricultural facilities. After the case attracted media attention, the charge against her was quickly dropped.

But Meyer’s case is part of an aggressive legal push that raises alarm bells across the country, for activists and journalists alike. Ag-gag legislation has now been enacted in sevensix states and introduced in at least 15 more. Many of the laws, passed at the behest of agribusiness groups, are based on model legislation drafted by the conservative American Legislative Exchange Council (ALEC), and they target what the group calls “animal and ecological terrorists.” But most if not all of the bills are broad enough that investigative reporters could also find themselves bound and “gagged.”

“Even if the target of the legislation is not the press, it may impact the ability of the media to serve in its watchdog role,” said Stephen Key, executive director of the Hoosier State Press Association, which has lobbied against proposed ag-gag legislation in Indiana.

Criminalizing deception

The first ag-gag laws were enacted in the early 1990s by Kansas, Montana, and North Dakota. Each of these laws, with some qualifiers, prohibits unauthorized individuals from taking photographs or video of agricultural operations.

More than a decade later, after a wave of high-profile animal-abuse and food-safety scandals uncovered by activists and journalists, agribusiness groups renewed their push for ag-gag legislation in states across the nation, from New York to Tennessee to California. So far, this new effort has borne statutory fruit in Iowa, Utah, and Missouri, and Arkansas. (For a more detailed history, see Ted Genoways’s recent article in Mother Jones.)

When the Iowa bill was being debated in 2011, it initially hit a snag: The state attorney general warned that a prohibition on recordings of facilities, already in place in three states, might not pass constitutional muster. In response, state Sen. Joe Seng and a colleague narrowed the scope of the measure to outlaw one particular weapon in the activists’ arsenal: lying on a job application to gain access to a facility.

That was enough to appease some opponents of the original draft, including the Iowa Newspaper Association.

“The first iteration of the bill we felt trampled on the Constitution,” INA Executive Director Chris Mudge told me. “… We would have preferred that nothing passed, but we accepted this.”

The new version of the bill, which passed the legislature with overwhelming bipartisan support and became law in March of last year, would not infringe upon press freedom, cosponsor Seng argued in a March 2012 interview on the public radio program Marketplace:

“I would think that people like the news media, anything like that, this law that we just passed is not prohibitive against that. This is mainly entering a facility under fraudulent reasons.”

In fact, journalists occasionally do employ undercover tactics. The May issue of Harper’s featured an investigative report with the tagline “Undercover in an industrial slaughterhouse.” The article was written by Ted Conover, who noted in an accompanying essay that his reporting would have constituted a crime in some states.

In general, though, undercover reporting is viewed warily even by journalists. Mark Horvit, executive director of Investigative Reporters & Editors, a nonprofit group headquartered at the University of Missouri, said his group does not advocate reporting under false pretenses.

“There are all sorts of ramifications that come from working dishonestly,” Horvit said. “So I don’t know that laws need to change to govern that kind of behavior.”

But even if the vast majority of reporters would not be interested in going undercover themselves, they might still want to talk with activists who have done so, and look at any documentary evidence they may have—however it was obtained.

“One of the problems here,” Horvit told me, “is journalists doing their job or possessing material given to them by a source… may now be either breaking the law themselves or working with sources who are breaking the law.”

Missouri: 24 hours or bust?

As in Iowa, ag-gag proponents in Missouri met resistance to an initial, far-reaching bill, including from the state press association. In retreating to a narrower measure, though, Missouri proponents hit on a novel idea. Rather than barring investigators from taking pictures or video at agricultural facilities, the law requires employee whistleblowers to submit any evidence of suspected animal abuse to the authorities within 24 hours.

This new gambit gave proponents an opening to claim the anti-abuse mantle for themselves—and to portray activist groups like Humane Society of the United States and People for the Ethical Treatment of Animals, which typically gather footage of mistreatment over a months-long period, as indifferent to animal suffering.

“If abuse does in fact occur, it needs to be dealt with immediately instead of being sensationalized months later as a fundraising tool for extremist animal rights groups like HSUS, PETA, and others,” said Lonny Duckworth of the Missouri Cattlemen’s Association, in praising Gov. Jay Nixon for signing the measure into law.

The law also, without directly targeting journalists, threatens to disrupt the way investigations are conducted. And it raises new questions, for journalists and their sources. For one thing, how can anyone—activist, journalist, or concerned employee—responsibly complete an investigation in a 24-hour window?

“Oftentimes, investigations by journalists can take days or weeks or months … building your case, vetting your information,” Horvit said. “… If you’re not given time to do that in a way that’s appropriate, the story can fall through, and that causes great harm to the journalistic process.”

Mike McGraw, a Kansas City Star reporter who has done important investigative work on abuses in the beef industry and lax USDA oversight, told me that the Missouri law “could backfire on industry” by not affording investigators the time to seek a response from management before running to the authorities.

Some opponents argue that requiring an investigator to surrender evidence to the state within such a short window of time is plainly unconstitutional.

“That’s why there’s a due process in this country,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. “If you want something or need something, it needs to be subpoenaed.”

Neither Iowa nor Missouri has a media shield law protecting journalists from being compelled to give up sources or evidence, although court rulings in both states have afforded some limited protections.

Send in the drones

In addition to these battlegrounds, the ag-gag wars may now be spreading skyward as well.

This year, Missouri state Rep. Casey Guernsey, the architect of the state’s original ag-gag legislation, also put forward a bill to prohibit the use of unmanned surveillance aircraft, except for limited law enforcement purposes.

A host of anti-drone measures, promoted by civil libertarian groups, have popped up in states and municipalities across the country. But according to Scott Pham, director of the Missouri Drone Journalism Program, the anti-drone movement in the Show-Me State may not be motivated entirely by constitutional concerns.

“Here in Missouri, I think it’s very transparently connected to the ag-gag movement,” said Pham, who runs one of only two “drone journalism” programs in the nation along with his duties as content director at public radio station KBIA.

Citing language in Guernsey’s legislation that bars drone surveillance of “any individual, property owned by an individual, farm, or agricultural industry,” Pham says the real purpose was to protect agricultural operations from scrutiny—by regulatory agencies or journalists.

“I consider that an ag-gag bill,” Pham told me.

Guernsey was unconcerned that his bill might impede the work of journalists; if anything, he seemed to welcome the idea. “If I’m hearing about drones being used to gather information from a news standpoint, I would say that would be at the top of my list of concerns,” he told KCTV in Kansas City.

Pham told Guernsey that his drones were flying only over public lands and being used for environmental reporting, rather than investigations of private individuals or businesses. “We’re not out to do gotcha stories,” he told me.

Pham did acknowledge, however, the enormous potential for future journalists and activists to use drones and other aerial means to carry out the kinds of investigations that are becoming increasingly hard to conduct on terra firma.

If adopted, those strategies will inevitably provoke further legal controversy.

Last month, photojournalist George Steinmetz was arrested after taking aerial pictures for National Geographic while paragliding over a Kansas feedlot. Animal-rights activists seized upon the case as an ag-gag arrest, though authorities charged Steinmetz with trespassing for taking off on private property—a charge he denied.

The Steinmetz case may be a foreshadowing of the air wars to come, says the NPPA’s Osterreicher, who has written about the coming legal battles over drone technology.

“Most people who fly in planes don’t need to get permission from the places that they overfly,” Osterreicher told me, previewing the coming collision of drone technology and ag-gag law. “That’s going to be a very big issue in the coming years.”

More battles ahead

For now, the ag-gag movement seems to have lost some momentum. With the notable exception of Arkansas, each Each of the state bills introduced in 2013 was defeated. In Missouri, Guernsey’s drone bill passed the House but failed to move in the Senate.

And in Utah, the only state where someone has been prosecuted under an ag-gag law, the Amy Meyer case has prompted a legal challenge against the statute by animal-rights organizations.

For those in the sixfive other states where ag-gag laws remain on the books, Osterreicher said, “you just wait until someone gets challenged under it. But in the meantime it has this chilling effect.”

Few media associations have been as vocal as Osterreicher’s NPPA in responding to the ag-gag movement. But if the movement remains as aggressive as it has been in the last few years, they may have no other choice but to fight back—or at minimum, help their members deal with the pitfalls.

“If enough of these laws pass, we may have to look at guides for navigating these state laws,” IRE’s Horvit said.

In Indiana, the Hoosier State Press Association and its allies were successful in beating back the ag-gag effort this year, but the HSPA expects to see the legislation back on the agenda in 2014 and is preparing to do battle again.

“All press associations should be vigilant about these bills because they do have First Amendment implications,” said Key of the HSPA.

“Not only the press associations, but anybody should be concerned with efforts to stifle debate.”

Correction: The original version of this story said that “ag-gag” legislation passed in Arkansas this year. In fact, the ag-gag language was stripped out of SB 13 before it moved to the governor’s desk in April. CJR regrets the error.

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Deron Lee is CJR's correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee. Tags: , , , , , , , , , , , , ,