A Win For Free Speech Is Not A Win For Animals

Calli Norman

On January 9th, 2019 the U.S. District Court for the Southern District of Iowa held the State’s ag-gag law unconstitutional on First Amendment grounds. Iowa’s “Agricultural Production Facility Fraud”prohibits obtaining access to agricultural facilities under “false pretenses”. This includes making false statements or misrepresentations in employment agreements with agricultural facilities. The law was fueled by the agricultural industry’s concern for its security and reputation. According to The Associated Press, “no undercover investigations had taken place in Iowa since the law was approved”.

Animal activists, such as the Animal Legal Defense Fund, view this ruling as a “win for free speech and animal protection”. The State has since filed an appeal, seeking to protect the existing privacy and property rights. I think both parties miss the mark. How does this ruling actually further animal interests? To what extent is a judgment that protects lying a victory?

There are four Federal statutes that protect animal interests: the Animal Welfare Act, the 28 Hour Law, the Humane Slaughter Act, and the Endangered Species Act. However, these statutes don’t reach all animals. The Animal Welfare Act protects animals used for commercial sale, research, and exhibitions, but excluding agricultural facilities from its regulatory purview. Thus, while the treatment of animals such as dogs, cats, and chimpanzees are regulated, the treatment of farm animals are not. Birds (one of the most consumed, living proteins in the country) are excluded from the 28 Hour Law and the Humane Slaughter Act, but both statutes merely induce a minimum standard of treatment in the transport to, and practice of, slaughter. (So, not quite a win for animal welfare). As the name suggests, the Endangered Species Act only reaches animals on the endangered species list, which implies that the animals interests have been consistently and historically denied to the point of near extinction. Most states have enacted animal cruelty statues, but again, these often focus on abuse of domestic pets and rarely touch agricultural animals.

Given the lack of protection offered by Federal and State statutes, the invalidation of Iowa’s ag-gag law seems significant. It appears to remove a major obstacle in gathering evidence of inhumane practices in agricultural facilities. However, the very fact that Iowa must rely on deceptive, undercover, private investigators to expose animal abuse points to the larger issue of a grossly inadequate animal welfare regime. This inadequacy is further realized by the fact that the evidence gathered is submitted to the media, not the courts, with the intent to inspire market based corrections rather than legislative ones.   

The question before the Court was whether lying to obtain a job is protected by the First Amendment. Judge Gritzner answered in the affirmative. Although Judge Gritzner notes that “To some degree, the concept of constitutional protection for speech that is false may be disquieting”, he ultimately relies on the Supreme Courts reasoning that “[t]he 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.” (Alvarez, 567 U.S. at 729-30). If the Constitution protects animal activists’s right to make false statements, then what prevents the agricultural industry from offering false statements regarding the conditions of its facilities, the treatment of its animals, or its employment practices? Arguably, consumer fraud laws prevent this breed of false speech. But, once again, these laws do not exist for the benefit or promotion of animal interests. Furthermore, if we value jurisprudential consistency, then the nation must realize that if detested animal abuse is prohibited, it must be so at the cost of prohibiting embraced animal abuse.

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