Michael Withey

The North Carolina legislature wants to punish anyone who blows the whistle on illegal or cruel acts on factory farms, nursing homes, daycare centers . . . or just about anywhere else. In fact, North Carolina’s law, a version of “Ag-Gag” laws passed in other states across the country, is sweeping in who it tries to gag, and where. It’s a blatantly unconstitutional move by legislators who have been bought and paid for by corporate lobbysists, and we’re asking a federal court to throw the law out.

These laws have largely been the result of lobbying by huge factory farms, and the factory farming industry has a secret. When most people hear the word “farm,” they picture a small business, owned by a middle class family, with happy cows scattered across green fields on rolling hillsides. They picture a farmer on a tractor in the sun tilling fields that have been in his family for generations; a kid waking up early to check the coop for eggs; or someone tossing a bucket of slop to gleeful pigs reminiscent of Babe.

In fact, however, most farming in America is “factory farming,” and factory farming bears no resemblance to the family farm. These are warehouses where livestock are kept in gigantic industrial facilities owned by a remarkably small number of multi-billion dollar corporations (one of the largest of these is owned by a corporation controlled by the government of China; so much for the image of the American farmer). This is farming by the 1%. As Bernie Sanders has said, just four corporations own 82% of the nation’s beef cattle market, and there are over 300,000 fewer farmers than there were 20 years ago.

In these facilities, tens of thousands of cows, pigs, and chickens live their lives pumped full of antibiotics, squeezed into tightly constricted spaces, often hooked to machines, standing in their own filth, and potentially never seeing the light of day. The factory farming system also puts an incredible strain on our natural resources: among other things, the extreme amount of waste created by cramming so many animals in one place pollutes our air, water, and land.

A handful of private citizens and advocacy organizations have been working to break through the carefully constructed narrative created by the industry’s PR firms. They often do so by going undercover and taking pictures or videos of what actually goes on behind the closed doors of these industrial operations. The videos that have emerged in recent years have revealed appalling, horrific scenes of cruel, unsanitary conditions. Thousands of people have watched – with horror – videos showing factory farmers assaulting animals for their own amusement, butchering them alive, forcing sick and crippled animals to the slaughterhouse, and leaving the bodies of those too sick to move to be eaten by the others.

Perhaps nothing in modern American life can rival the power of video to change the way the public understands an issue. For years, sports fans largely tuned out press stories about sports heroes who’ve committed violence against women. But with the release of a short grainy video of a pro bowl running back knocking his girlfriend unconscious and dragging her across the ground, tons of Americans suddenly sat up and took notice.

The same thing is starting to happen to factory farms and ”Big Ag” recognizes that its system, built on abuse and environmental contamination in order to produce chemical-laden and unhealthy products, can only stand if the public remains in the dark. When the first video or two showing this horrific abuse emerged, seasoned lobbyists could simply decry the actions of stray bad actors. But as a steady stream of such images make their way to the public, the industry is afraid the public will begin to demand action to hold factory farms accountable.

So what should a state legislature do when it’s confronted with evidence that some factory farmers in are acting illegally, inhumanely and unsafely? Well, if you’re a state legislator who gets (and loves) a lot of campaign contributions from factory farms, the answer is usually “shoot the messenger and cover up the problem.” And that’s where the “Ag-Gag” comes from. These are laws pushed at the behest of the industrial agriculture lobby to punish those who expose the ugly truth.

And that’s exactly what happened in North Carolina. In 2012, the state was ground zero for a corporate purchase of political influence made possible by Citizens United. A state that had been gradually heading in a progressive direction, was suddenly flooded with hundreds of millions of dollars in advertising and activism by vaguely named corporate front groups. As a result, the legislature enacted a wave of voter suppression measures, passed limits on a woman’s right to choose, slashed funding for education, and more. Then, on June 3, 2015, it passed an Ag-Gag law.

(Actually, having twice previously failed to do the agricultural industry’s dirty work and pass a pure Ag-Gag law, North Carolina accomplished Big Ag’s ends by pushing an even broader law that blocks whistleblowers in nearly every industry. This version of the law could block children from exposing elder abuse at nursing homes, or parents from reporting abuse in day care facilities. Such broad, intrusive language resulted in a diverse array of groups, such as AARP, fiercely opposing it.)

VETOThe core point of the bill, however, is the same as other Ag-Gag laws: to shield illegal corporate conduct and keep the public in the dark. As one supporter explained, the North Carolina statute is aimed at stopping “exposés” (nothing like an unfiltered state legislator to tell the truth), and it targets the collection of information that corporations want to keep from public view. When North Carolina’s extremely conservative Republican governor Patrick McCrory (R) vetoed the bill, on the grounds that it went too far, the factory farm lobby had infiltrated the legislature so deeply that lawmakers overrode the veto and pushed it through anyway.

Today, my public interest law firm, Public Justice, is filing a lawsuit challenging the North Carolina Ag-Gag law as unconstitutional. We’re doing so on behalf of a coalition of well-respected advocates, including the Center for Food Safety, Animal Legal Defense Fund, Farm Sanctuary, Food and Water Watch, Government Accountability Project, and People for the Ethical Treatment of Animals. We believe North Carolina’s statute violates the First and Fourteenth Amendments to the U.S. Constitution, and provisions of the state constitution, and must be struck down.

Make no mistake: This law is an effort to limit speech with which the State disagrees, and targets and burdens those who would report on illegal conduct. It makes it harder for people to petition the government about public concerns, and violates the Equal Protection Clause by targeting a particular group of people.

This will be the third time Public Justice has been part of a team challenging a state Ag-Gag law as unconstitutional. Last August, a federal court struck down Idaho’s Ag-Gag law, which is similar to the North Carolina statute, and was also designed to turn factory farm whistleblowers into criminals. The court held that that the statute suppressed speech that criticizes factory farms, and was motivated by an unconstitutional animus against animal advocates. Similarly, late last month, a federal court in Wyoming rejected an effort to toss out a lawsuit challenging that state’s Ag-Gag law (which criminalizes the gathering of data on pollution levels in streams). The Court found that there were “grave concerns” with the statute’s constitutionality.

We believe the challenge we’re filing today will result in Ag-Gag laws going zero-for-three in the courts.

These laws cannot stand. There is something genuinely repulsive about legislatures reacting to public alarm over inhumane and unsafe practices at factory farms by trying to cover up the illegal practices rather than stop them.

Undercover investigations have played a central role in informing the public about corporate misconduct in the animal industry and forcing systemic change. It’s a legacy that goes back to 1906, when Upton Sinclair wrote The Jungle. Now, as then, state governments working on behalf of factory farm lobbyists aren’t just endangering public health and violating the constitution. They’re on the wrong side of history, too.

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