The First Amendment and Ag-Gag Laws

Updated:

On April 6, The New York Times published an article entitled, “With Ag-Gag Laws, We’re Eating with Our Eyes Closed.”  Such laws penalize those who (1) covertly take videos of abuse at facilities where animals are held; and/or (2) apply for a job at such a facility without revealing that they are affiliated with an animal rights group.

Animal rights activists’ prior covert operations have revealed terrible cruelty to farm animals, as the Times article notes, citing a number of examples.  If done to a dog or cat, this kind of cruelty would carry harsh criminal penalties for the perpetrator.  Some states have laudably responded to the cruelty in animal facilities by punishing the facilities, as the Times noted, while other states have decided to cloak their own facilities in secrecy, so that no more evidence of the truth comes out—hence, the Ag-Gag laws were created.

The lobbyists who are pushing for the Ag-Gag laws offer several deeply unconvincing reasons why such laws are supposedly necessary.  One reason, they say, is that it is difficult for a layperson to identify animal abuse.  Another reason they cite is that, according to farmers, the covert videos of abuse don’t reflect reality.  But investigations like those of PETA (“Factory Farming: Cruelty to Animals,” available at peta.org) suggest that cruelty to farm animals is plain to see, and is commonplace.  (I don’t belong to PETA, but I found their set of investigations on this issue very helpful.)

Another claim that the Ag-Gag lobbyists have put forward is that the covert films of animal abuse that activists record are somehow defamatory to the facilities and their owners.  But that’s an absurd contention.  Defamation relies on a false statement of fact, and the cameras that activists that use to capture images inside animal facilities, rather than making statements, simply offer images.

Invoking another tort law concept, a farmer quoted in the Times piece claims that covert investigations put farmers in a “false light.”  As with defamation, though, false light is a tort law concept that involves words, not camera images. If those who participated in the covert animal facility investigations had unearthed no abuse or maltreatment at all, and yet had claimed to have done so, nonetheless, then that claim would have been defamatory and would have put the farmers in a false light.  As it is, however, these terms do not fit, and their use by those defending animal facilities can only be explained by the lobbyists’ hope that the public may be convinced by legal-sounding, but irrelevant, terms.

Another misapplied label here is the invocation, in lobbying group ALEC’s model bill “The Animal and Ecological Terrorism Act,” of terrorism.  There is no hint of terrorism here, only an attempt by activists to make the public aware of how farm animals are too often cruelly mistreated.  ALEC’s attempt to evoke terrorism in the title of its bill, especially after 9/11, goes beyond the pale. The lobbying group seems to be counting on state legislators’ fear of voting against a bill that simply sounds as if it has to do with terrorism, regardless of the bill’s true subject matter.

In this column, I’ll argue that the covert activities that are being conducted by animal activists, as described above, should be protected by the First Amendment, or if that approach fails, they at lease should not be criminalized, or otherwise penalized, by any government—federal, state, or local.

Readers’ first reaction to what animal rights activists are doing may simply be that it is obviously wrong, since the activists are trespassing on private property, and lying on their job applications in order to do so.

But surely, in some situations, any reader would countenance those actions—for instance, if the reader were to learn that a group of children was being held and abused by adults, and that trespassing, pretending to be a job applicant, and photographing the children’s wounds was the only way to set them free and end the abuse, or at least to tell the world about it, and be believed.  So the real question here is whether preserving the welfare and lives of animals is sufficiently important for activists to use the same kind of non-violent tactics that I described above in the hypothetical situation where children, not animals, were involved.  I believe it absolutely is. Animals, too, suffer pain, just as we humans do.

Because Animals Themselves Cannot Speak, Their Defenders Deserve Maximum First Amendment Protections

Animals—especially farm animals—are among the most vulnerable beings alive.  They cannot speak; unlike with children, their parents cannot speak for them; and they largely cannot defend themselves physically against the humans who mean to do them harm.  If any creatures in our world need protection, these animals do.  If it weren’t for the covert investigators who create films depicting their lives, their abuse, and their pain, no one would know—in a visceral, moving way—of their desperate, painful, and hopeless situations.

If animals are going to have champions, those champions are going to have to be humans, and if those humans are going to speak knowledgeably and persuasively about farm animals’ actual lives, they need to know about, and to document, them.  There is no other way.

Animals obviously cannot use First Amendment rights themselves, but that shouldn’t be the end of the matter.  Just as a child might have a guardian ad litem to advocate for his or her interests, so too should every individual animal who is in danger have a guardian ad litem to do the same, but, of course, our legal system doesn’t provide one.  However, activists who enter animal facilities with covert cameras are doing something like what a guardian ad litem for a child might do:  collect evidence to show that the child is suffering cruelty and/or mistreatment.

E.B. White’s children’s book Charlotte’s Web depicts a fantasy world in which animals can speak for themselves and each other.  As readers may recall, in the book, Charlotte is a spider who lives on a farm with a pig, Wilbur, who is in grave peril of being killed and eaten.  But Charlotte spins a web bearing the message “Some Pig,” above Wilbur, and thereby saves Wilbur’s life.  Here, I am proposing that covert animal rights activists be treated not as interlopers and lawbreakers, but as necessary guardians for the animals: as a group of Charlottes, who point us to their own Wilburs to underline their worth, and their vulnerability.

Would Putting Webcams in Slaughterhouses Change Things?

In an April 8 Op Ed, also in the Times, entitled, “Open the Slaughterhouses,” Duke law professor and author Jedediah Purdy followed up on the Times coverage with a suggestion:  Put webcams in slaughterhouses, focused on key stages in the slaughterhouses’ processes, so that the public can see what is actually going on there.  (If the webcams didn’t show a fair picture of the slaughterhouses’ operations, Purdy notes, then the slaughterhouses could augment them with additional cameras providing a more balanced picture.)

Purdy’s suggestion regarding webcams is a reasonable measure.  However, I disagree strongly with Purdy when he says, at the end of his Times Op Ed that “our treatment of animals is a hard problem that is divisive—and often leaves us internally divided—and too often oversimplified.”  I don’t believe that this is a “hard problem” at all, as Purdy claims. As an ethical vegan, I think there’s an exceedingly simple solution to the problem: Don’t eat, or otherwise use, animal products.

Purdy may think that the vegan solution is somehow oversimplified, but I think it is merely appropriately simple—and correct.  If humans could not thrive without animal products, then that might be a “hard problem”—one requiring difficult choices.  In fact, vegan diets are extremely healthful, much more than those that include meat.

Finally, Purdy’s argument for webcams in slaughterhouses sounds a lot like the famous animal rights movement slogan “If slaughterhouses had glass walls, everyone would be vegetarian.”  What is bizarre about Purdy’s argument for webcams in slaughterhouses, though, is that it skips the second part of the famous saying, which suggests that, with glass walls (or now, in the modern era, webcams) animals would then be saved, and that the world would be better for it.  Thus, Purdy is somehow stuck advocating for webcams in slaughterhouses, but still balking, rather than embracing, the logical conclusion of what we would see, and what we might want to do, if they were there—for who, seeing an animal caged and suffering, wouldn’t want to set it free?

  • Have we actually become sufficiently civilized that we are ready to stop killing and eating animals? I don’t think so, though the economic justifications are becoming increasingly compelling. I think what we actually have here is a typical example of what happens when love of money is given the highest priority. It is possible to treat animals more humanely, even in the process of killing them, but that would reduce profits. As a natural result, the First Amendment is now for sale by the cheapest and most easily bribed professional politicians.

    Insofar as our political process has become a source of more problems than it cures, I think our only hope is to restructure things so that you can’t make a living purely as a career politician. How about a variable term limit based on time spent in the non-political civil service? Perhaps you should not be able to run for reelection unless you have served at least one year working for the government in a nonpolitical capacity? Perhaps five years if you want to run for a second reelection? Reelection dues payable in advance?

  • Evil Overlord

    Thanks for a pointed and compelling argument. The Ag Gag laws are wrong-headed from all sorts of perspectives, not least because they are intended to prevent the public from getting important information.