Janine Jackson: Simply put, if an industry goes after people who seek to investigate it, it’s a pretty good indication that they’re doing something they don’t want you to know. This is certainly the case with the animal agriculture industry. The term “ag-gag,” introduced by New York Times food writer Mark Bittman, describes the slew of laws introduced to target undercover investigations and whistleblowing about the industry. Because, it turns out, when people don’t just hear about but see piglets having their heads bashed against cement floors, or cows too sick to walk being picked up by forklifts, it affects how they feel—and how they act.

The battle between those defending the industry’s ability to shroud its practices in darkness and those fighting for our right to see, and then make choices based on that knowledge, is ongoing, and for the most part, and for now, sunshine is winning. A new report tells the history of that fight: Ag-Gag Across America: Corporate-Backed Attacks on Activists and Whistleblowers comes from Defending Rights & Dissent and the Center for Constitutional Rights. We’re joined now by the report’s primary author. Chip Gibbons is policy and legislative counsel for Defending Rights & Dissent, and a journalist. He joins us now by phone from Washington, DC. Welcome to CounterSpin, Chip Gibbons.

Chip Gibbons: Thank you for having me. I’m a big fan of all of the work that FAIR has done over the years.

JJ: Well, thank you. Let’s start, then, with a definition. We’re talking about a number of different, mostly state laws. So what defines them as “ag-gag”?

CG: Ag-gag laws are any laws that try to prevent the public from knowing what goes on in the animal agriculture industry. They all target documentation and undercover investigations and whistleblowing, but the ways in which they do it vary state by state. But the main practices are prohibiting documentation of agricultural practices, and this is something like passing a law saying you can’t take photo or video inside of an agriculture facility.

The other big way they do this is by prohibiting misrepresentation through job applications. So if I’m an undercover investigator and I’m applying for a job at a factory farm, and the hirer asks me, are you affiliated with PETA?, I’m obviously not going to say yes, or I’m not going to get the job. So the investigator would not be entirely truthful about their background there, and a number of states have made that a crime.

And a third way, and this is actually kind of counterintuitive to a lot of folks, is they impose mandatory reporting requirements for reporting animal cruelty. And a lot of people might say, well, that sounds like that’s helping animals, isn’t this what you want, aren’t there similar laws for child abuse? And the problem with that is that if an undercover investigator reports animal cruelty, he or she or they blow their cover as an investigator.

And these reports, what’s so damning about them, is that they don’t usually take one or two isolated instances of somebody abusing an animal; they document systemic practices, systemic abuse. So you can’t do a long-term investigation that way. And it allows the agricultural industry to then turn around and say, oh, this is an isolated incident, we don’t allow people to smash piglets’ heads on floors, which is the legal and established way of euthanizing piglets.

JJ: The industry didn’t just decide one day to create these laws; they were clearly a response, and they were a response to activists doing just the kind of work that you’re describing, right?

CG: Yeah, that’s the really interesting thing about studying these laws in depth. There’s two waves. There was a series of bills between ’90 and ’91 that don’t get a lot of attention, that are passed in Kansas, Montana and North Dakota. And they’re very much the classic ag-gag bill: no taking a photo or video in an agricultural facility. But the bills really started to heat up starting in 2011. And when we looked back, and we studied each of the different current ag-gag bills that have been passed, we found a very interesting pattern, which was that, in many cases, these were direct responses to investigations.

So you would see PETA or another environmental or animal rights group going into a facility, and they would expose animal cruelty. And in a lot of cases, these resulted in unprecedented prosecutions, people were arrested, changes were made. And these legislators, instead of celebrating that the laws are finally being enforced, when they never had been before, turn around and say, oh, this is quite bad, let’s criminalize the practices that led to these wrongdoings being exposed. And it’s really shocking to think about, that undercover investigators would uncover wrongdoing, in some cases actual criminal conduct; you would have investigations by authorities, prosecutions, arrests, laws actually being able to be enforced for the first time; and the legislature turns around and says, we’re going to make exposing that conduct illegal.

JJ: It is shocking.

CG: It’s shocking.

JJ: It’s counterintuitive, one would hope. But there’s been resistance from the start. I mean, these laws don’t really hold legal water, do they? They may be unconstitutional.

CG: Both the laws in Idaho and Utah have been found by district courts to be unconstitutional, for violating the First Amendment and in some cases for violating the 14th Amendment. So when you ban photography inside a factory farm, you run up against the First Amendment for a number of reasons. First of all, for a law to be constitutional, it has to be viewpoint-neutral. And what these laws do is, they only penalize videos that are critical of agriculture, or critical of the factory farms. If you took a video showing wonderful, happy cows, and how much they loved living in a dairy factory, you’re not going to go to jail under these laws.

The other thing is that laws are supposed to be content-neutral, and these laws specifically ban communications about the agriculture industry. They also—in a number of cases, the harm done happens when they’re reported by the press, not the filming itself, so it burdens the free press. In Wyoming, there was actually an issue with the First Amendment’s freedom-to-petition-the-government clause, because the initial version of the law only banned collecting data if your intent was to submit it to a state or federal agency, which is, once again, unthinkable, because it makes sense that a federal agency would want evidence of E. coli in the stream polluting everyone’s drinking water, but the state legislature of Wyoming decided if you do that, they want you in jail.

JJ: You mentioned there being repercussions. I just want to make, as a note: The report does note that when abuse does come to light, it tends to be, or it is, the low-level workers who are fired, as though the minimum-wage guy came up with the idea of, you know, caging pigs in this way, or something like that.

CG: Yeah, I don’t think it will be much of a surprise to your listeners that we have a very unequal justice system. And I think one of the things that’s been most frustrating to the groups that put on these undercover investigators is, it’s never the big corporate shots that go to jail, it’s never the corporate CEOs, it’s always somebody at the bottom of the ladder, who is overworked, underpaid, abused themselves, under a lot of stress. So it is important to not be overly celebratory about these types of prosecutions. I only highlight that they occurred because they’re extremely rare to begin with, at any level, to have animal cruelty prosecutions on a Midwestern farm. I believe the first one was a result of an undercover video.

JJ: Right. Well, the introduction of the term “terrorism” is important, and the use of that term, or “ecoterrorism” or whatever variant. It implies violence, and it kind of shuts people’s brains off, I think—or that’s the hope. I know that you’ve written about the power of crying “terrorism” in other contexts. But what has it meant in the ag-gag fight?

CG: So Will Potter from Green Is the New Red has documented this in really great detail. As the environmental movement and the animal rights movement gained popularity, there was a state backlash where they started conflating activism with terrorism, and once you do that, you get to open the floodgates for all kinds of legislative repression. In the early ’90s, late ’80s, Congress considers for the first time a law—it’s not an ag-gag law, but it would create federal penalties for crimes against animal enterprises. And the FBI of George H.W. Bush actually comes and testifies against the law, saying, we don’t want this law, there’s already enough laws on the books, there’s state laws that cover this.

And then industry groups started promoting this narrative that there were “animal terrorists,” “ecoterrorists.” And then we had a problem; and if there’s a problem, we need a remedy. And the remedy has been to put together all of these laws, like the Animal Enterprise Terrorism Act. And once you put the laws on the book, that then reinforces the narrative that there’s a problem.

You know, if you said, we want laws to silence our opponents, because people are aware of the environmental impact of our industry, or they’re aware of ethical issues with using animals for commercial purposes, and they don’t like our products anymore, no one would say that was OK. But if you say, oh, we have a terrorism problem, we need anti-terrorism legislation, that’s a completely different story for the public.

And Will Potter got some internal documents, years ago, about the coalition that lobbied for the federal Animal Enterprise Terrorism Act, and they put an enormous amount of significance on using the word “terrorism,” because they realized when you demonize your opponents as terrorists, you then get to use the harsh legislation. If you just call them “activists” or “critics,” it’s not going to go over very well.

And interestingly enough, the model ag-gag bill, which is promoted by ALEC, uses “terrorism” in the name. And if you’re convicted of filming inside a factory farm under the ALEC bill, you then have to register—this part of the bill was never passed anywhere, but it’s worth looking at their thinking — you’d have to register with the attorney general as part of the state animal and ecological terrorist database. So that’s what the other side is thinking. They’re thinking, if you label these people terrorists, then we can make them register, we can shut them down, we can do all that stuff.

JJ: Finally, of course it’s important on its own, but it almost doesn’t need saying that this idea of corporations or companies criminalizing the documentation of these processes, it has meaning and it has impact beyond agriculture.

CG: Yes. So other industries look at ag-gag laws and say, why not us? You know, activists look at ag-gag laws and say, why are you singling out only the agricultural industry for protection; that’s kind of instructive of what your real intent is. But other industries have the same thought, and they say, why can’t we be protected too?

So you’ve seen ag-gag laws gradually expand into general gag laws. And the first instance of this is in Wyoming, which doesn’t criminalize filming inside a farm, but taking samples from rivers, doing what’s called “data trespass.” Because there’s a lot of cattle ranchers. Obviously, cattle ranching is not good for the environment. People take resource data from the rivers to document E. coli and other bacteria in there. And that was the first expansion of it.

But then after that, you saw North Carolina, they created a bill that imposed civil, not criminal penalties like previous ones did, on whistleblowers in every single industry. And then Arkansas did the same thing as well. So you now have these gag bills that can be used, not just in the agricultural industry, but if someone exposes abuse in a nursing home, in a retirement home or anywhere else, it gives their employer the right to sue them. So they’ve basically taken the ag out of ag-gag.

JJ: We’ve been speaking with journalist Chip Gibbons, policy and legislative counsel for Defending Rights & Dissent, and contributor to the book The Henry Kissinger Files, forthcoming from Verso. The report Ag-Gag Across America is available on RightsAndDissent.org. Chip Gibbons, thank you so much for joining us this week on CounterSpin.

CG: Thank you for having me.

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