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A federal court ruling in Iowa could signal the unraveling of North Caroina’s harsh, punitive and shortsighted anti-whistleblower law.
The U.S. District Court for the Southern District of Iowa struck down that state’s ag-gag law Wednesday, ruling that making it a crime to gain access to an agricultural production facility under false pretenses violates the First Amendment. Ag-gag laws have spread in an effort to stifle the release of undercover videos showing animal cruelty and inhumane or unsanitary conditions in factory farms.
North Carolina’s version, introduced as House Bill 405 and enacted in June 2015 after lawmakers overrode then-Gov. Pat McCrory’s veto, sets a presumptive civil penalty of $5,000 per day for anyone who records video or sound on an employer’s property “and uses the recording to breach the person’s duty of loyalty to the employer.”
While our state hasn’t criminalized undercover investigations, it uses the threat of steep fines to deter would-be whistleblowers — not just in agricultural facilities, but in any business. A worker who witnesses food being contaminated at a restaurant or overhears plans to defraud investors at a bank can’t expose wrongdoing without the legitimate fear of a court-sanctioned shakedown.
Animal welfare groups often use secretly recorded video of poultry and livestock abuse to make their case for stricter farm regulations and food boycotts. That frightens farmers, who use their lobbying muscle to preempt the threat to their business. But the undercover operatives often uncover crimes, and without the evidence they gather, those crimes would go unpunished.
In rural Richmond County, a 2015 Mercy For Animals video targeting Perdue Farms and one of its contract growers showed a 22-year-old farmworker stomping chickens’ heads into the ground with his heel and flinging them into walls. Sheriff’s deputies arrested the worker on animal cruelty charges. Four years prior, Mercy For Animals exposed abuse at a Butterball contract grower’s farm outside the Robeson County town of Shannon.
Ag-gag and anti-whistleblower laws hinge on the premise that an activist or investigator who uses dishonest means to secure employment in order to document suspected abuse should be punished. Courts are steadily dismantling that presumption.
“To some degree, the concept of constitutional protection for speech that is false may be disquieting. However, as the Supreme Court has reasoned, ‘the nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace,’” Senior District Judge James E. Gritzner wrote in the Iowa case, quoting high court precedent from United States v. Alvarez.
In the 2012 Alvarez ruling, justices invalidated part of the Stolen Valor Act, ruling that the First Amendment’s free-speech clause protects people who lie about receiving military medals. Those who falsely claim military heroism in order to receive cash, discounts or other tangible benefits can still be prosecuted under the law’s fraud provision.
Lying may be a moral ill, but the First Amendment tolerates some falsehood. Ag-gag laws are doomed by their narrow scope. Why should it be illegal to lie about advocacy group membership to get a job when applicants face no parallel penalty for claiming unearned academic degrees or omitting the existence of a criminal conviction?
When bosses discover dishonesty after the hiring process, the appropriate remedy is a swift firing — not an arrest or a civil fine. Why involve the government in private employment relationships when better background checks ought to do the trick?
As for concerns over whistleblowers revealing trade secrets, there’s already a tangle of torts and a mountain of case law on businesses’ intellectual property rights that covers this ground.
Ag-gag laws are plainly intended to stop undercover investigations that expose abuse and embarrass factory farms. They don’t serve the agricultural industry; they insulate individual bad actors. Farms that run a tight ship and proactively prevent misconduct have nothing to fear.
The Iowa ruling follows court victories in Utah and Idaho that struck down similar ag-gag laws there. One of the plaintiffs in those cases, the Animal Legal Defense Fund, has also challenged North Carolina’s ag-gag law as unconstitutional. Last June, the 4th U.S. Circuit Court of Appeals reinstated that lawsuit, overruling a district judge who sought to throw it out.
Our General Assembly should repeal the 2015 ag-gag law and save federal courts the trouble of taking it off the books. State legislators chose to protect lawbreakers and go after whistleblowers. It ought to be the other way around.