Animal Law, Public Interest

Ag-Gag Laws Are Lawsuit Fodder

All told, there’s not much further from the public interest than ag-gag laws. Why's that the case?

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As a former municipal employee and card-carrying idealist, I’m sure it will surprise no one that I love Parks and Recreation. To help me get by since the show is gone for good, the other night I watched Aziz Ansari’s Netflix special Live at Madison Square Garden.  At one point in his routine, Ansari goes on a hilarious riff that meanders from the unique deliciousness of meat to the horrors of factory farming and concludes with an imagined Ja Rule PSA.  You should watch the whole thing.  But as long as you’re here reading this right now, let’s stay for a few minutes on the topic of the horrors of factory farming.

Bear with me — we’ll get to how this relates to public interest law before too long.

Ansari’s routine discusses the deep unpleasantness of large-scale animal farming.  He provides the example of rooster chicks from egg-laying breeds — animals that can’t lay eggs and won’t get big enough fast enough to be sold for meat — being put through something akin to a wood chipper for disposal.  And he states that this type of farming practice “just hasn’t been seen in the right context to elicit the kind of mass outrage that would actually result in some changes.”

Now I’m not actually sure that widespread knowledge of this practice of chick-chipping would elicit the outrage Ansari imagines.  Veterinarians who know more than I do apparently support the practice (go here and head to the section titled “Maceration”), and the resulting chick slurry apparently isn’t wasted — instead, it becomes dog food.  Regardless, the practice certainly seems inhumane, and it’s worth thinking about.

But here’s where we get to the law: several states want to make sure you don’t think about it.  And they sure as hell don’t want you to see it “in the right context to elicit the kind of mass outrage that would actually result in some changes.”  So, to make sure you won’t see or think about animal agriculture, they’ve been passing so-called “ag-gag laws.”  These laws, in the words of the American Society for the Prevention of Cruelty to Animals, “are designed to prevent the exposure of troubling practices at agricultural facilities.”

All told, there’s not much further from the public interest than ag-gag laws.  Consider the one that was passed into law in Wyoming earlier this month.  It accomplishes a few things:

First, it criminalizes “collecting resource data” from private land without permission to collect the “resource data.”  The law defines “resource data” as “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.”  By my reading, you’ve technically violated this law and could be subject to a year’s imprisonment if you idly counted the dandelions in a Wyoming farmer’s front yard without asking the farmer first.  And it goes without saying that you’ve violated the law if you not-so-idly documented a farmer’s animal abuses without asking the farmer first.

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Second, it provides that “no resource data collected in violation of this section is admissible in evidence in any civil, criminal, or administrative proceeding, other than a prosecution for violation of this section or a civil action against the violator.”  So your documentation of a farmer’s animal abuses CANNOT be used against the farmer in any way but CAN land you in prison. Neat!

And third, it requires any government agencies in receipt of illegal “resource data” to expunge the data and pretend it never existed in the first place.

Why exactly is this far from the public interest?  Well, for starters it makes it incredibly difficult to document illegal activity ranging from animal abuse to labor violations to environmental crimes.  If you’re a farmworker and you count how many hours you’ve worked and how much you’re getting paid for those hours, you’ve collected “data relating to land or land use including but not limited to data relating to agriculture.”  If the law were applied as written, you could be prosecuted for your arithmetical activities, you could be prevented from using those numbers to press a wage case against the farmer, and regulators could be prevented from relying on that information to correct the problem.  That goes way beyond simply depriving whistleblowers of any legal protection.  And it goes way beyond the property-rights rationale proffered to support the bill.  Ridiculous potential applications of this law abound.  But still this absurd bill found its way onto the books.

Of course we can all brainstorm ways the law is likely unconstitutional, but that fun exercise won’t stop zealous local law enforcement from banging the heads of would-be whistleblowers for now, and it certainly won’t dilute the chilling effect the law will have until it’s overruled.  But bad laws like this do accomplish one good thing: they keep public interest lawyers employed.  Idaho’s somewhat more circumspect ag-gag law is winding its way through the courts now, and lawyers like those at the Center for Food Safety (which is involved in the Idaho litigation and which called for the Wyoming law to be vetoed) should be lining up already to see Wyoming’s much worse law struck down.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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