Exposing Ag-Gag

Ag-gag \ ‘ag-gag \ noun  Any bill of law that punishes those who expose abusive conditions on factory farms; verb The act of silencing opposition to the abuse of farmed animals.

When Farm Forward board member and best-selling author Jonathan Safran Foer became a father, he felt compelled to find out more about meat production. Rebuffed by attempts to visit factory farms during daylight, his concern for his son led him to some middle-of-the-night, not-so-authorized visits to factory farms.1 In the past, the worst Jonathan may have been guilty of was trespassing. Today he might be thrown in jail.

Across the nation, more and more states are passing “ag-gag” legislation designed specifically to hinder undercover investigations by, among other things, criminalizing unauthorized video recording on farm operations. From ag-gag’s inception in the early 1990s to 2015, almost 30 states introduced bills banning or restricting undercover investigations surrounding the abuse of farmed animals,2 and eight states have passed ag-gag into law.3 However, in recent years, a number of ag-gag laws have been deemed unconstitutional, often due to violations of the First Amendment.

The scope of activities banned by ag-gag legislation is shocking. For example, one ag-gag bill proposed in 2011 would have outlawed the mere possession of an undercover video and criminalized the simple act of using a camera phone in a pet store or veterinarian’s waiting room.4 Another, proposed in 2014, was so vaguely written that it could outlaw the recording of video in restaurants, grocery stores, and even private residences.5

In 2013, ag-gag bills were introduced in 11 states. Thanks to public pressure, every bill was defeated.6

Ag-gag bills were defeated in nine states in 2014,7 with only one state giving in to pressure from big agriculture: Idaho.8 Farm Forward sued Idaho in federal court to strike down its ag-gag law as unconstitutional. The issue received national attention when, “on August 3, 2015, U.S. District Court Chief Judge B. Lynn. Winmill struck down the law for violating the First Amendment right to free speech and the Fourteenth Amendment’s Equal Protection Clause.”9 After being appealed in 2018, this decision was reaffirmed, and a federal court struck down provisions of Idaho’s bill.10

In Iowa, this trend continued when in 2022, a federal court found the third attempt at an Iowa ag-gag law unconstitutional11. This version of the Iowa bill had the support of Iowa Governor Kim Reynolds and the legislature. Another 2022 victory was found in Kansas, where in April the US Supreme Court declined to review the decision of a lower court to deem the ag-gag law in violation of the First Amendment.12

Several more states introduced ag-gag bills in 2015, and in June of that year, North Carolina legislators overrode their governor’s veto and became the eighth state to pass ag-gag. They did so over the objections of citizens, animal groups, and organizations like the AARP and the Wounded Warrior Project—which argued that the law was broad enough to discourage investigations of hospitals, nursing homes, and daycare centers.13

But we fought back, and in June of 2020, after many years of working with a coalition of groups led by Public Justice, we won! A federal court judge struck down North Carolina’s “Ag-gag law,” ruling that several of its provisions are unconstitutional and violate the First Amendment.

Why Undercover Video is Necessary

In 2008, a meat packager in California known as the Westland/Hallmark Meat Packing Company (Hallmark) issued the largest meat recall in history.14Westland/Hallmark initiated the 143-million-pound beef recall—infamously quadrupling the previous US record—in response to allegations that “downer cattle” (those unable to walk to slaughter) were being processed for human consumption.15 Downer cattle, which the United States Department of Agriculture (USDA) has called “unfit for human food,”16 are banned from slaughter because they pose a heightened risk of E. coli, bovine spongiform encephalopathy (mad cow disease), and salmonella.17 Since the recall included beef products going back as far as two years, most of the meat had already been eaten, including well over half of the 37 million pounds18 that Hallmark had distributed to school cafeterias and other federal nutrition programs across the country.19

The USDA stated that its inspectors had been present “continuously”20 at Hallmark, and the plant also passed no less than 17 separate, independent food safety and humane handling audits the previous year.21

Yet these layers of oversight didn’t stop horrible, ongoing animal abuse, and they didn’t stop the plant from putting millions of people at risk of foodborne illness. It took an undercover investigation to stop these cruel and reckless practices.

Here’s the story: In late 2007, a Humane Society of the United States (HSUS) member gained employment at the plant, and over six weeks shot video showing other plant employees using forklifts and electric prods to force downer cattle to slaughter.22 At one point an employee even tried to force water up the nose of a downer cow (also known as “waterboarding”23) in an attempt to get the cow to move.

Meanwhile, HSUS contacted local prosecutors but was asked to withhold the footage pending an investigation. After two months, HSUS grew tired of waiting and released the video.24 Two days later the plant voluntarily suspended operations,25 and within three weeks it announced the recall of enough beef to make two quarter-pound hamburgers for every man, woman, and child in the country. Two Hallmark employees were fired and faced felony and misdemeanor animal abuse charges,26 and the US Department of Justice eventually filed complaints against the plant for accepting millions in federal contracts while lying about a partner’s felony convictions and illegally slaughtering downer cows over several years.27 Despite all the federal oversight and independent audits, only the release of an undercover video prompted action.

After the recall, the Food Safety Inspection Service (FSIS, a division of the USDA) investigation found that “there is an inherent vulnerability that humane handling violations can occur and not be detected by FSIS inspectors because FSIS does not provide continuous surveillance.”28 FSIS found “deliberate actions by Hallmark personnel to bypass required inspections, as well as noncompliance with required inspection procedures by FSIS in-plant staff.” The FSIS investigators quite sensibly recommended determining “whether FSIS-controlled in-plant video monitoring would be beneficial in preventing and detecting animal abuses.”29 Incredibly, USDA leadership dismissed the recommendation even though it came directly from FSIS, one of its own divisions!

Defying common sense, the USDA instead promised to issue non-binding guidance on how slaughterhouses could voluntarily use cameras for internal auditing purposes.30  This is the strange story of how a federal investigation initiated because of humane handling violations revealed by undercover video surveillance concluded that video surveillance “would not provide the definitive data needed to support enforcement of humane handling requirements.”31 (It’s difficult to imagine a clearer example of why the USDA should be overhauled into something like the US “Department of Food,” an idea that food advocates like Nicholas Kristof32 and Michael Pollan33  have suggested for years. Such a department could put meeting the public need for safe and humane food above the private interests of agribusiness.) Government controls failed then and continue to fail today. However, the abuse seen at Hallmark could have been averted if a second tier of oversight hadn’t failed as well.

Remember those 17 independent audits that Hallmark passed in 2007? Two occurred in the same weeks the undercover video was shot.34 While exact dates were never independently verified, Hallmark’s president reported that the HSUS investigator worked at Hallmark from October 3 to November 14, 2007. Of the 17 independent audits conducted in 2007, one was conducted on November 13 and 14, and another was conducted a week later on November 21. One of these gave Hallmark perfect scores for not “dragging a conscious, non-ambulatory animal” and not “hitting or beating an animal”—two activities that are clearly documented by the HSUS video, and which the audit report itself states are “grounds for automatic audit failure.”35  On the very day that Hallmark suspended operations, one auditor wrote that “I have reviewed the records and programs you have at your plant [which] are the best I have ever seen in any plant. . . . Your plant has passed numerous audits on humane handling of animals in this plant in the year of 2007 and has no failures, which you should to [sic] be very proud of.” As proof of his conclusions, the auditor cited his “substantial experience” of over 25 years with FSIS.36

Killing the Messenger

In 2013, an animal rescue worker named Amy Meyer was prosecuted under Utah’s 2012 ag-gag law for filming animal abuse occurring at the Dale T. Smith and Sons Meat Packing Company in Draper, Utah.37  Meyer obtained the footage from across the street, on public property, using her cell phone.38 The manager of the slaughterhouse accused Meyer of trespassing and crossing the barbed-wire fence that demarcated the boundary of the slaughterhouse’s property, even though her footage was shot from outside the fence.39 Even so, Meyer was prosecuted under the state’s ag-gag law, which prohibits recording any sounds or images at an agricultural operation without the property owner’s consent, while trespassing, or under false pretenses.40 Ultimately, prosecutors dismissed the charges against Meyer based on video evidence demonstrating that she shot the footage at least partly from public property.41

When an industry is so corrupt, sloppy, and cruel that it can’t stand up under serious scrutiny, its last resort is to attack the ones doing the scrutinizing. The Iowa Poultry Association, which helped write the Iowa ag-gag bill in 2011,42 has defended ag-gag by arguing that animal welfare advocates might sneak onto farms in order to make fake videos, though its chief executive couldn’t name a single example of something like that ever happening.43 The Iowa Cattlemen’s Association actually made the nonsensical claim that the bill could be used to punish individuals who wait to report animal abuse because they “hold on to that information for publicity purposes” (the bill didn’t criminalize waiting to report animal abuse—just unauthorized recording).44

This fearmongering obscures the simple fact that investigators are consumers, parents, and concerned citizens—they are the vast majority of us who want to know how animals are treated and if our food is safe. Responsible investigators strive to observe and document—”to be the eyes and ears of the public.”45 Ag-gag laws aim to silence investigators who discover animal abuse on factory farms, restricting their First Amendment right to speak about the food industry’s criminal activities and undermining the public’s right to know when meat producers commit animal cruelty and endanger consumers with unsafe food handling practices.

While the ag-gag laws proposed in 2011 focused on criminalizing undercover investigative activity, many of those introduced since 2012 focused instead on stifling long, fact-gathering investigations by requiring that evidence of animal abuse be turned over to authorities immediately—effectively outlawing investigations of abuse while giving the appearance of bolstering protection for animals.

How You Can Fight Ag-Gag

Send a message to the factory farm lobby and the politicians they control by signing up to be kept in the know about ways to take action on Ag-gag. Amplify your message by sharing it on Facebook and Twitter and talking about it with friends and family. And make a large or small donation to Farm Forward so we can continue to strike down these unconstitutional laws.

More than half the states in the US have introduced ag-gag legislation. The factory farm industry’s campaign to silence criticism is extensive, well-financed, and frighteningly insistent.

But it’s also fatally flawed. By waging war against undercover investigations, agribusiness is attacking not only your right to a safe and humane food supply but also your right to free speech. Agribusiness is betting that you won’t stand up for your rights—and that’s a very bad bet.