Iowa appeals federal judge’s ruling that its ‘ag gag’ law is unconstitutional

Pigs in a CAFO (concentrated animal feed operation). — photo via the United States Geological Survey, public domain

Iowa is appealing a federal district judge’s ruling that it’s “ag gag” law is unconstitutional. On Thursday, Iowa Attorney General Tom Miller filed a notice of appeal and motion asking the district court to allow the law to remain in effect during the appeal.

In his Jan. 9 decision striking down the law for violating the First Amendment, Senior Judge James Gritzner of the U.S. District Court for the Southern District of Iowa wrote, “The law has the effect of criminalizing undercover investigations of certain agricultural facilities [such as industrial livestock farms] and those of interest to the general public, such as puppy mills.”

The Agricultural Production Facility Fraud Act, signed into law by Gov. Terry Branstad in 2012, made it a “serious misdemeanor,” punishable by up to a year in jail, to provide false information on a job application at such a facility, if the applicant intends to record images without permission.

In October 2017, the ACLU of Iowa filed a lawsuit to overturn the law, on behalf of the Iowa Citizens for Community Improvement (ICCI), the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the National Center for Food Safety and Bailing Out Benji, an Iowa nonprofit focused on the welfare of dogs.

“No other industry in Iowa has carved out protections to silence whistle-blowers that go this far,” Adam Mason, state policy organizing director for ICCI, said after Miller filed the challenge to Judge Gritzner’s decision. “We know that factory farms pose environmental threats and threats to worker safety. We will continue to push to expose them for what they are.”

Griztner included examples of the sort of exposés the ag gag law stopped in his decision.

For example, in 2011, an undercover investigation at Iowa Select Farms produced reports of workers hurling small piglets onto a concrete floor. Another investigation at Iowa’s Sparboe Farms, documented reported mistreatment of hens and chicks. And yet another, conducted by PETA, exposed workers at a Hormel Foods supplier in Iowa ‘beating pigs with metal rods,’ ‘sticking clothespins into pigs’ eyes and faces, and a supervisor kicking a young pig in the face, abdomen, and genitals to make her move while telling the investigator, ‘You gotta beat on the bitch. Make her cry.’ PETA’s investigation, if not also the others, was an undercover, employment-based investigation in which the investigator also performed tasks assigned by the employer.

Kansas passed the country’s first law intended to prevent undercover investigations of the treatment of livestock in 1990, and 12 states have passed similar laws since then. In 2015 a federal court struck down Idaho in 2015 for violating the First Amendment, and federal courts overturned laws in Utah and Wyoming for the same reason in 2017.

Court challenges to the laws in Kansas and North Carolina are currently ongoing.

In his motion to keep the law in place during the appeal, Miller argues “there is no First Amendment right to use false pretenses to gain access to an agricultural production facility or employment at said facility, with the intent to knowingly commit an unauthorized act.” Miller contends that since the law “does not prohibit secret recordings and whistleblowing from legitimate employees,” it will not have a significant impact on the public’s right to know.

Miller claims that if the law isn’t left in place it will interfere with the state’s effort “to promote biosecurity,” which “may significantly impact Iowans.”

According to the filing, “although the public certainly has an interest in ensuring the exercise of their First Amendment right … when compared with the interest to the public in protecting private property and biosecurity … the balance arguably leans towards the latter.”

The Attorney General’s Office declined to offer any comment on the lawsuit when contacted by Little Village.

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