Gagging on Ag Gag: On the Evils of Agricultural Gag Laws

Seacord & Seacord, 2014

GAGGING ON AG GAG: ON THE EVILS OF AGRICULTURAL GAGLAWS

In this paper we argue for the philosophically straightforward claim that ag gag laws are a bad idea. These laws hide the activities of factory farmsand slaughterhouses from the public eye, and therefore make it easier for the individuals and companies involved in animal industries to get away with cruel and illegal treatment of non-human animals. Moreover, ag gag laws make it harder for us learn about activities that threaten the safety of our food or environment, or the safety of their employees. In addition, ag gag laws are an unjustified attack on free speech and are likely to have a chilling effect on journalism. Finally, proponents of ag gaglaws wield the word “terrorist” as a weapon reminiscent of the way the word “communist” was used during the McCarthy era. After laying out thecase against ag gag laws, we will consider objections from both supporters of the animal agriculture industry and Gary Francione. Ultimately, we conclude that it is important for defenders of animal rights,as well as anyone who cares about free and open debate, to come out in strong opposition to ag gag laws.

Beth Seacord: is visiting assistant professor at GrandValley State University in Grand Rapids, MI. She received

her PhD from the University of Colorado in 2013. Herresearch interests include philosophy of religion,

philosophy of science, environmental philosophy, animalethics and animal studies.

[email protected]

Matt Seacord: is ABD from the University of Colorado,Boulder. His research interests include environmentalphilosophy, political philosophy and animal ethics.


[email protected]

GAGGING ON AG GAG: ON THE EVILS OF AGRICULTURAL GAG LAWS

On February 8th of last year, Amy Meyer and a friend pulled

into a parking lot across the street from a meat packing plant in

a suburb of Salt Lake City, Utah (Woodhouse). They noticed a

sick cow being pushed by a bulldozer outside of the

slaughterhouse. While standing on the public road outside of the

facility, Amy Meyer filmed the incident. Later, Amy Meyer was to

become the first person arrested and charged under Utah’s new

agricultural gag (ag-gag) law which makes it illegal to film,

photograph or record factory farms or slaughterhouses (Porter,

“Australia Risks Copying US Ag Gag Laws”).

Ag gagi laws are a species of state-level legislation that

have been inspired by the American Legislative Exchange Council’s

(ALEC) model bill, the “Animal and Ecological Terrorism Act.”

Ag gag laws would (among other things) make it illegal to

covertly investigate animal industries for animal and

environmental abuses.


In this paper we argue for the philosophically

straightforward claim that ag gag laws are a bad idea. These

laws hide the activities of factory farms and slaughterhouses

from the public eye, and therefore make it easier for the

individuals and companies involved in animal industries to get

away with cruel and illegal treatment of non-human animals.ii

Moreover, ag gag laws make it harder for us learn about

activities that threaten the safety of our food or environment,

or the safety of their employees. In addition, ag gag laws are

an unjustified attack on free speech and are likely to have a

chilling effect on journalism. Finally, proponents of ag gag

laws wield the word “terrorist” as a weapon reminiscent of the

way the word “communist” was used during the McCarthy era. After

laying out the case against ag gag laws, we will consider

objections from both supporters of the animal agriculture

industry and Gary Francione. Ultimately, we conclude that it is

important for defenders of animal rights, as well as anyone who

cares about free and open debate, to come out in strong

opposition to ag gag laws. But first, what are ag gag laws?

In 2002 the American Legislative Exchange Council, (an

organization that pairs corporate members with state legislators

letting corporations draft dream legislation for introduction

into state assemblies) produced the “Animal and Ecological

Terrorism Act.” The model legislation does three significant

things: 1) First, it expands the definition of terrorism to

include not only property destruction, but any action intended to


“obstruct, impede or deter” animal enterprises.iii The model bill

would define people who “obstruct or impede the use of an animal

facility or the use of a natural resource” so that “value or

enjoyment is lost” as terrorists. In short, ALEC’s version of the

ag gag bill would turn a peaceful “sit-in” which results in a

loss of profit into a terrorist act. The model bill would also

label those who “enter an animal or research facility to take

pictures by photograph, video camera or other means with the

intent to commit criminal activities or defame the facility or

its owner” as terrorists. This would include employees at the

facility who have legal access to the property. 2) The second

significant component of the model legislation is that it widens

the net to also implicate those providing aid to anyone in the

above category by offering shelter, transportation or

resources.iv Journalist Will Porter notes that the model bill’s

language is so nebulous that holding a bake sale to support tree

sitters could be covered by the bill as a terrorist act (Green is

the New Red, 128). Finally 3) the third aspect of the model bill

would create a “terrorist registry” which would operate much like

a sex-offender registry where a public website would be

maintained with addresses and photographs of eco and animal

activists.v Ag gag bills based on ALEC’s “Animal and Ecological

Terrorism Act” have been introduced in 24 states and passed in

seven (Idaho, Iowa, Utah, South Carolina, Californiavi, Missouri,

Arkansas) and pre-existed in three states (Montana, North Dakota

and Kansas) and are still pending in other states.


1. WHY AG GAG LAWS ARE A BAD IDEA

As philosophers, we are accustomed to making complicated

arguments and defending controversial theses, but this seems to

be a departure, in that we believe the case against ag gag laws

is fairly straightforward. Nevertheless, ag gag laws have

significant and harmful, real-world implications which makes

their discussion important even if they do not pose a difficult

philosophical puzzle. Here are some reasons why ag gag laws are a

bad idea.

These laws keep consumers in the dark which is dangerous and

dishonest in a few ways. First, keeping consumers in the dark is

dangerous to food safety. In a time when consumers want to know

more, not less about where their food comes from and the

conditions under which it is produced, ag gag laws threaten our

ability to know and control what we put into our bodies. For

instance, an undercover investigation by the Humane Society in

2008 led to the largest meat recall in US history when 143

million pounds of meat were recalled after it was revealed that

cows too sick to walk were being fed to California school

children in school lunch programs. Government regulations

prohibit slaughtering for food cattle that cannot stand or walk

on their own because of the increased risk of mad cow disease

(Brown). The $497,000,000 judgment against the guilty company

bankrupted it. Shortly thereafter the Cattleman’s Association

introduced an ag gag bill in California. Ag gag laws would keep


independent organizations like the Humane Society from exposing

food safety issues.

Second, ag gag laws would hide the pervasive cruelty to

animals which is widespread in animal industries letting the

public imagine that their bacon and eggs come from Old McDonald’s

farm and not from crowded, filthy and misery-filled factory

farms. Or letting the less-deluded among us believe that animals

do not mind being kept in cramped, dark and dirty facilities with

no place to run (or hide); or that they do not mind being

castrated, tail-docked, or beak-clipped without anesthetic—or

that slaughter is quick, peaceful and painless. People not only

have a right to know the basic conditions under which their food

is produced, but they also should know how their food is produced.

Namely, if they continue to eat meat, they should, at the very

least, be aware of what the animals they consume had to go

through. Ag gag laws limit what the public sees to what the

meat, egg and dairy industry want them to see. In fact, a study

in the Journal of Agriculture showed that “when animal welfare

issues are reported in the news, consumers respond by eating less

meat” (Porter, “Australia Risks Copying US Ag Gag Laws”). The

dairy, meat and egg industry have a vested interested in keeping

the grim details of intensive farming under wraps.

Third, ag gag laws hide criminal misconduct and moral abuses

from both legal and public scrutiny. In recent years, undercover

investigations by the Humane Society, the ASPCA, PETA, and Mercy


for Animals have led to arrests and felony convictions for

cruelty to animals. For instance, in 2011 Mercy for Animals went

undercover at a Butterball Turkey facility in North Carolina

where they documented “workers kicking and stomping on birds…

grabbing birds by their wings or necks and violently slamming

them into tiny transport crates.” The footage revealed “birds

suffering from…open sores, infections and broken bones” (Galli,

Patel, Momtaz). The investigation has led to felony and

misdemeanor animal cruelty charges against five Butterball

employees. Subsequent investigations by both Mercy for Animals

and PETA have revealed continued abuse at Butterball suppliers.

In addition, a front page article in the New York Times entitled,

“Taping of Farm Cruelty is Becoming the Crime” documents the

success of undercover investigators exposing illegal activities

such as farm workers “burning the ankles of horses with

chemicals” and workers in a Wyoming, Tyson foods supplier

“punching and kicking pigs and flinging piglets into the air”

(Oppel). According to the article, undercover footage led to the

conviction of the horse trainers and workers under the Horse

Protection Act. And in Wyoming nine of the farm employees were

charged with cruelty to animals. Other recent investigations

have uncovered cruelty at Bettencourt Dairy, Idaho’s largest

dairy and supplier of milk and cheese to Kraft, Wendy’s and

Burger King where workers were taped punching cows in the face

and eyes as well as sexually abusing the cows. Three animal

cruelty convictions were the result of the Bettencourt


investigations, in addition both Wendy’s and Burger King severed

ties with Bettencourt (Kraft still buys from Bettencourt). The

list of animal abuses exposed by a relatively small number of

undercover investigators and whistleblowers stretches on for

pages. Ag gag laws would criminalize the documentation and

reporting of illegal activities often giving worse penalties to

the investigators and whistleblowers than those committing the

criminal acts that were exposed.

Undercover investigators and whistleblowers also expose

legal but morally reprehensible practices. Because many states

exempt farm animals from cruelty laws, one of the most effective

ways to expose such behavior and bring about legal change for

farm animals is to reveal footage of animal mistreatment to the

public (New York Times Editorial Board). For example, Cody

Carlson, investigator for the Humane Society, worked undercover

at four Iowa egg facilities in 2010 “wearing a hidden pinhole

camera, using it to film conditions as [he] went about his

chores.” Although nothing at the egg facility that he filmed was

illegal, “the video was alarming enough to make national

headlines” (Carlson, “Ag Gag Laws”). The undercover footage

showed “hens caged alongside rotting bird corpses, while workers

burnt and snapped the beaks off of young chicks” (Oppel).

According to an industry spokesperson testifying during an ag gag

hearing, fifty businesses including McDonalds quickly called and

stopped buying eggs after the videos of legal, but disturbing and


morally problematic practices were released to the public

(Porter, “Australia Risks Copying US Ag Gag Laws”).

Ag gag laws would also make it harder to expose

environmental abuses. Intensive farming is an environmental

nightmare, and only a small part of the damage done by intensive

farming is regulated. (For instance, 18% of greenhouse gasses

come from livestock. In comparison all forms of fossil fuel

transportation combined—cars, trucks, planes, etc.—produce 13% of

the world’s emissions (Landis-Marinello). Obviously there are no

laws that aim at ameliorating greenhouse gases emitted by

livestock.) One of the biggest environmental impacts of

intensive farming is the effects on water quality. Raising

unnaturally large numbers of animals in one place creates a huge

amount of waste that is both difficult and expensive to treat and

dispose of properly. Often the dumping of untreated or

improperly treated waste goes unreported (Landis-Marinello, 149).

Ag-gag laws would make it harder for undercover investigators or

whistleblowers to discover and report these kinds of

environmental abuses.

The public should also worry about the kind of precedent

that ag gag legislation has set. Ohio and Pennsylvania have

passed gag laws protecting the fracking industry from having to

disclose the chemicals used in hydraulic fracturing. The

fracking gag laws also bind doctors to non-disclosure, keeping

them from diagnosing their patient with an environmentally caused


illness or from warning communities about the health effects of

air and water pollution (Phillips). Gag laws like these that

keep the public in the dark at the cost of public health should

be of concern to everyone.

Ag gag laws would also make it harder to report poor working

conditions for laborers. Work in animal facilities is physically

and emotionally exhausting. According to former undercover

investigator, Cody Carlson, multiple employees confided in him

about “frequent nightmares” and “chronic health problems” (“My

Life as an Undercover Investigator”). Concern for workers

motivated Upton Sinclair’s investigation into the conditions of

the immigrant workers in Chicago’s meatpacking district in the

early 1900s. His investigation led to the publication of his

influential work, The Jungle and instigated numerous reforms

including the formation of what would later be called the Food

and Drug Administration. Such important activities that have a

record of bringing about change and reform would not only be

illegal, but could also be considered terrorist offenses if we do

not fight the spread of ag gag laws.

In addition to these more direct threats posed by ag gag

laws, they also represent a dangerous restriction on free speech.

Ag gag laws would, in essence, make a certain kind of

investigative journalism illegal. ALEC’s model bill not only

criminalizes the efforts of investigators and whistleblowers, but

any agency that would discuss, distribute or publish the material


that the investigator or whistleblower gleans. For instance ABC

News’ investigative reporter Brian Ross broke the Iowa egg story

by airing the Mercy for Animal’s undercover video. He would also

be guilty of terrorism under ALEC’s model bill. Even if someone

is not inclined to recognize the existence of significant animal

rights, they should be troubled by this restriction on free

speech and its chilling effect on investigative journalism.

According to journalist Amy Goodman, “it is a threat to a

democratic society to say that here are certain entities that are

off limits to investigation” (“How to Feed a Democracy”). An

informed public is essential to a healthy democracy and ag gag

laws attempt to ensure that our public policy in regard to animal

agriculture is based on a heavily censored (by industry) version

of the relevant facts.

Another problematic aspect of the new ag gag laws is the use

of the word “terrorist” as an additional weapon against eco and

animal activists. According to John Lewis, a top official at the

FBI, “The No. 1 domestic terrorism threat is the eco-terrorism,

animal rights movement” (Porter, Green is the New Red, 44-5).

Labeling animal and eco activists as terrorists gives judges the

option to apply terrorism enhancements in sentencing which

“increases the sentencing range at least ’12 levels,’ which can

add 20 years” (Harris). For instance environmental activist

Marie Mason burned down a field of genetically modified crops at

Michigan State University. She was sentenced to 21 years in

prison as a terrorist for a crime that caused no human injuries.


Eric McDavid was sentenced to 19 years in prison as a terrorist

for planning to destroy a power plant and mobile phone masts on

the property of the US Forest Service. And just this last July,

Tyler Lard and Kevin Olliff were indicted as terrorists for

sneaking into a fur farm and releasing 2,000 mink and foxes from

their cages (Porter, “Breaking: Two Animal Activists Indicted as

Terrorists for Freeing Mink”). Although none of the legislation

that has passed in any state has included ALEC’s Animal and

Ecological Terrorism Act’s terrorism language, the FBI has stated

that undercover investigators can be prosecuted as terrorists

(Porter, “FBI Says Activists who Investigate Factory Farms Can Be

Prosecuted as Terrorists”).

But what have animal and environmental activists done to

garner this attention? In a 2006 bulletin the Department of

Homeland Security warned law enforcement agencies about eco-

terrorism like “flyer [sic] distribution” and “tying up company

phone lines,” “organizing protests,” and “inundating computers

with e-mails” (Porter, “FBI Says Activists who Investigate

Factory Farms Can Be Prosecuted as Terrorists”). The DHS sums up

the threat of eco-terrorism thusly: “Attacks against

corporations by animal rights extremists and eco-terrorists are

costly to the targeted company and, over time, can undermine

confidence in the economy.” As Will Porter points out, “Animal

rights and environmental advocates have not flown planes into

buildings, taken hostages, or sent Anthrax through the mail”

(Porter, “Eco-terrorism and the Green Scare”). They have not


bombed buildings or encouraged the shooting of an Arizona

Congresswoman by running a website with rifle sites printed on

political targets, in contrast to Sarah Palin’s website. In

fact, no American animal or environmental activist has ever

intentionally injured anyone in their direct action campaignsvii

(Southern Poverty Law Center). But animal and environmental

groups have been incredibly costly to business interests.

In Porter’s book, Green is the New Red, he traces the genesis of

legislation targeting animal and environmental rights activists

as terrorists to the unprecedented success of the group Stop

Huntingdon Animal Cruelty in virtually bankrupting the

multinational corporation Huntingdon Life Sciences. The tactics

used by radical animal and environmental activists, like those

involved with Stop Huntingdon Animal Cruelty, target companies

that are harming animals and the environment and purposely try to

make it more costly and difficult to do business. This might

include sabotaging construction equipment, destroying lab

equipment used in animal testing or freeing mink and rabbits from

fur farms. It is beyond the scope of this paper to fully discuss

how the word ‘terrorism’ should be defined, but it seems clear

that those who self-consciously limit themselvesviii to property

damageix should not be considered terrorists. In the eyes of the

law animal and environmental activists who engage in direct

action are clearly guilty of arson, vandalism and theft, but not

terrorism. Heidi Boghosian, executive director of the National

Lawyers Guild, has rightly observed that “the government is


engaging in Orwellian newspeak by labeling activists as

terrorists” (Porter, Green is the New Red, 172).

More to the point, ag gag laws are an especially egregious

case of corporate overreach because they are an attempt to

criminalize, and classify as terrorism, acts which should clearly

be legally permissible. Whistleblowers, undercover journalists,

and undercover investigators go through conventional steps to

secure employment at animal facilities providing their real names

and social security numbers. Their activities do not involve

trespassing or breaking and entering, but the recording of

illegal activities that they witness. Even if the law should

punish some forms of direct action practiced by eco and animal

activists (without labeling these acts as terrorism), the

relatively tame acts covered by ag gag laws should continue to be

considered perfectly lawful behavior in any sane world.

2. OBJECTIONS

There are two basic kinds of objections to our thesis. The

first kind comes from those who are sympathetic to the relevant

industries. We will consider those objections first, and then we

will move on to a second kind of objection that comes from within

the animal rights community. In particular, we consider an

objection from Gary Francione that questions the value of the

material (video evidence, etc.) that emerges from undercover

exposés of various meat, dairy, or egg facilities.


Emily Meredith, a spokesperson for Animal Agricultural

Alliance, gives two reasons that ag gag laws ought to be adopted

despite the worries we have identified. First she argues that

“these undercover videos are harmful to the farm owners” and to

the “farm families that work those farms day in and day out and

to the animal agriculture industry… as a whole” (Democracy Now!

“Debate: After Activists Covertly Expose Animal Cruelty, Should

They Be Targeted With "Ag-Gag" Laws?”). However, this objection

gets things backwards as it is the farmers who are engaging in

horrendously cruel and sometimes illegal activities. It is their

own actions that are making them look bad, whistleblowers and

undercover investigators are merely documenting what is actually

occurring. In short Meredith’s objection boils down to blaming

the messenger.

Perhaps, we could reformulate the objection more charitably:

Kelli Lundlum, a spokesperson for the American Farm Bureau

Federation has said that the videos may seem troubling to those

of us who are unfamiliar with farming practices. Like seeing a

video of an open heart surgery, “they could be performing a

perfect procedure, but you would consider it abhorrent that they

were cutting a person open” (Oppel). However, there are some

important and morally relevant differences between a bloody video

of open-heart surgery and the undercover footage that animal

activists have revealed. First, the human being given the heart

surgery is not crying out, screaming or moaning like many of the

animals taped in factory farm videos; this is because the human


undergoing open heart surgery is anesthetized but animals that

are castrated, de-beaked, and tail-docked are standardly given no

anesthetic. Second, a morally important difference between the

case of open-heart surgery and the treatment of animals is that

open-heart surgery is given to a patient because it is in her

best interest—it is intended to make her well, but it is not in a

chicken’s interest to be decapitated.x

Suppose someone objects, arguing that killing animals for

food is morally permissible and footage of animal slaughter is

gory, but morally acceptable. Decapitation might be the least

painful way to kill a chicken intended for human consumption

(using euthesol is actually the most humane way to kill an

animal, imagine if you took your dog to the vet to be euthanized

and the vet decapitated it and then told you it was the most

“humane” way to end her suffering), but for those of us not used

to seeing this, we might be disturbed even though the practice

should be considered permissible. This line of reasoning also

seems flawed. First, if some are disturbed by the ‘humane’

killing of animals then those people ought to have the option to

stop eating animals when they see how their food is produced.

Second, the majority of the undercover investigations that we

have mentioned in this paper have not featured standard treatment

of animals on farms. They have featured workers throwing,

stomping, beating, dragging and sexually abusing animals. And

third, some of the practices that are accepted as standard in the

agriculture industry might be questionable. According to Mercy


for Animals undercover investigator “Pete,” he was surprised to

learn that the practice of kicking downer cows in the head and on

the neck is perfectly legal and a standard way to get downer cows

to stand. It seems like there should be a better way to go about

treating downer cows. (It is interesting to note that the

American Veterinary Medical Association has two different

standards of care for companion animals and farm animals. The

standard of care for the latter is clearly informed by profit and

not the best interests of the animal.xi) Ag gag laws would keep

the public from questioning “standard agricultural procedures”

and would also keep people in the dark about the effects of their

daily eating habits.

The second main argument leveled by Meredith is that the

animal industry does not need “activist groups policing them.”

She contends that industry facilities do a fine job at policing

themselves: she cites employee trainings, documents that

employees must sign upon employment pledging not to mistreat

animals, on-site video cameras and the pervasive practice of

hiring quality assurance managers at farms, ranches and

processing facilities. However, in an interview with Democracy

Now! undercover investigator “Pete” stated that in his work for

Mercy for Animals he is sent to randomly chosen animal facilities

(Democracy Now! “Debate: After Activists Covertly Expose Animal

Cruelty, Should They Be Targeted With "Ag-Gag" Laws?”). He says

that it is standard for employees to sign a form pledging not to

mistreat the animals, but this has absolutely no effect on the


farm’s day to day operations. (On-site video cameras were also

fairly standard.) In every single undercover assignment (lasting

between 2 and 6 weeks), “Pete” discovered illegal acts of animal

cruelty. It is shocking that in a randomly chosen sample of

farms—from small family farms to large scale intensive farms—that

would hire “Pete,” there was not one farm that consistently

complied with all animal welfare guidelines (Democracy Now!

“Undercover Activist Details Secret Filming of Animal Abuse & Why

"Ag-Gag" Laws May Force Him to Stop”). In addition, undercover

investigator Cody Carlson reports that in the multiple farming

facilities and fifty puppy mills he visited, “every facility had

at least one person…who tortured animals for fun” (“My Life as an

Undercover Investigator”). Carlson continues,

These guys were troubled, and didn’t make much effortto hide it from their coworkers. The scarier part wasthat nobody tried to stop them, or did anything morethan tease them for their sadistic behavior (“My Lifeas an Undercover Investigator”).

The pervasiveness of cruelty to animals on farms is evidence that

the facilities are not doing an adequate job of policing

themselves. In addition, the whole point of policing--having

regulatory laws and regulatory bodies--is that there is an

objectionable practice that people (or in this case, industries)

are inclined to do. Letting an industry regulate itself is not

policing. If we could trust the animal food industry to regulate

itself, then there would not need to be a discussion of

regulations and policing in the first place.


Another related objection might be that we already have the

USDA and Food Safety and Inspection Services, so we do not need

private, undercover investigators. Senator-R David Hinkins has

hinted at this sort of argument saying:

If a wife were abusing her husband, we wouldn’t sneakinto their living room and set up a hidden camera. Wedon’t want people mistreating animals…there areauthorizes they can contact. They don’t need to bedetectives or the Pink Panther sneaking around(Democracy Now! “Debate: After Activists CovertlyExpose Animal Cruelty, Should They Be Targeted With"Ag-Gag" Laws?”).

The gist of this objection is that we already have authorities

that are responsible for animal welfare so we do not need animal

activists poking their noses where they do not belong. However,

this objection is absurd on multiple levels. First, in the

scenario described by Hinkins, if the postman or neighbor were

aware of dangerous spousal abuse and attempted to record the

incident (via otherwise legal means) on behalf of the abused

party, who might be unable or afraid to go to authorities, one

absolutely should not think that the postman or neighbor acted

wrongly (especially if the life of one of the parties was in

danger). Second, animals unlike a battered spouse, cannot

contact the authorities, they are unable to ask for help or

report abuse. Third, there is a need for undercover work when

the parties responsible for reporting abuse have failed to do so.

The USDA spends the bulk of its resources on food safety and not

on humane handling enforcement. According to a USDA report,


“humane handling inspections are only performed on a limited

basis” (USDA: Office of the Inspector General).

The presence of USDA inspectors and workers probably make

things much better than they would be. Predictably when the

number of USDA inspectors at plants is decreased, the percentage

of contaminated meat increases (Philpott), (Food and Water

Watch). However, the USDA’s efforts have proven insufficient.

Time and again government officials have failed to safeguard the

health of consumers and the welfare of animals. For example, one

internal investigation by the USDA into Food Safety and

Inspection Services—the branch of the USDA responsible for

inspecting meat, eggs and dairy found “repeated violations of

food safety laws.”

The Food Safety and Inspection Service’s (FSIS)enforcement policies do not deter swine slaughterplants from becoming repeat violators of the FederalMeat Inspection Act (FMIA). As a result, plants haverepeatedly violated the same regulations with little orno consequence (USDA: Office of the General Inspector).

The report also details repeated animal cruelty violations:

Finally, we found that FSIS inspectors did not takeappropriate enforcement actions at 8 of the 30 swineslaughter plants we visited for violations of theHumane Method of Slaughter Act (HMSA). We reviewed 158humane handling noncompliance records (violations)issued to the 30 plants and found 10 instances ofegregious violations where inspectors did not issuesuspensions. As a result, the plants did not improvetheir slaughter practices, and FSIS could not ensure


humane handling of swine (USDA: Office of the InspectorGeneral).

Reports from the USDA, the Office of the Inspector General and

the Government Accountability office all found that “inspectors

did not take consistent enforcement action for humane handling

violations,” and “did not suspend plant operations when it

appeared warranted” (GAO-10-203). According to the report, one-

third of inspectors, including the district trainer, interviewed

said they would not issue a non-compliance report if they

witnessed a conscious animal on the bleed rail. (This is a humane

handling violation). According to the USDA report, inspectors

are not doing their job to make sure animals are “humanely”

treated. Although the report recommends various improvements,

whether these are implemented or help remains to be seen.

Furthermore, in a democracy like ours that is supposed to be

governed by the rule of law, the government itself is not above

the law and should be held accountable by the people to ensure

that it is fulfilling its obligations. Just like we do not trust

citizens to police themselves, we should not trust the government

to police itself entirely. A healthy democracy also needs a free

press, which includes independent undercover investigations, to

ensure that government agents are doing what they legally ought

to be doing. This is not just a theoretical concern.

Unfortunately, there is evidence of actual corruption of state

officials in this area of the law (not to mention other areas of

the law). USDA inspectors have been prosecuted for obstruction


of justice and corruption. For example, in the 2011 Mercy for

Animals investigation of Butterball, it was revealed that USDA

official Dr. Sarah Jean Mason did nothing to ensure the welfare

of the turkeys at the Butterball plant. She “pled guilty to

obstruction of justice charges after admitting to leaking

confidential information to Butterball and potentially

compromising the criminal cruelty investigation by state law

enforcement officials” (Polis). Other inspectors have been found

taking bribes (Huffstutter) or have had their reports of animal

abuse ignored by their supervisors. Clearly the state’s

regulation of animal agriculture needs to be watched by outside

eyes. Undercover investigators play an essential role in

bringing public attention to industry and government abuses—an

essential role that is protected by the first amendment.

A different kind of objection to the evil of ag gag laws

comes from Gary Francione, animal rights advocate and professor

of law at Rutgers University. He argues that the benefits of

undercover investigations are so insignificant that they do

animals a disservice in the end. Although, Francione opposes ag

gag legislation on first amendment grounds, he argues that ag gag

legislation is not a “death knell for the animal movement” (“A

Brief Note on Ag Gag Laws”).

We don’t need more footage from factory farms. There isalready more than enough. For the most part, theobjection to these laws concerns the fact that largeanimal groups need a steady stream of “exposés” so thatthey can continue to promote the idea that there are“responsible” farms and “irresponsible” farms,


“abusive” treatment and “non-abusive” treatment. Theanimal groups get footage of some farm employees doingsomething hideous; they have a big campaign; thefactory farm does a mea culpa or gets a wrist slapping;the animal groups declare “victory” and proclaim thatthe “abusive” behavior has been stopped. Even if thefarm or abattoir is sanctioned heavily, or closes, thedemand is picked up by another facility. The public isreassured that the animal groups are ensuring thatanimals are being treated “humanely” and keepsdemanding animal products. It’s a win-win. The animalgroups get praise and, more important, donations; thepublic is reassured and feels better about consuminganimal products (Francione, “A Brief Note on Ag GagLaws”)

Francione’s objection to the practice of producing undercover

exposés has two parts. First, he argues that we don’t need any

more undercover footage; the public already has access to

undercover footage documenting the terrible suffering of animals

used for food or research. The second part of Francione’s

objection is that the use of the footage to improve the

conditions for animals is self-defeating. It does little to

improve the lives of animals and only serves to make the public

feel better about continuing to exploit animals by consuming

animal products.

In general we are sympathetic with Francione’s reasoning,

but we still think that it is important for those who support

animal rights (as well as those who accept the reasoning behind

the first amendment of the U.S. Constitution) to strongly condemn

ag gag laws. In regard to Francione’s first point, he does seem


to undervalue, at least to some extent, the value of these

exposés. In particular, their efforts seem important to us in

that they provide up-to-date footage from factory farms. Even if

there is already plenty of undercover footage, it would be easy

for animal industry spokespeople to insist that the days of

inhumane farming are in the past by saying something like, “those

video are from five years ago; things have changed.” Having

current evidence of the conditions of food animals keeps the

issue fresh and before the eyes of the public.

We agree with Francione’s second point, as counter-intuitive

as it first seems, small improvements in animal welfare might do

more harm than good in the end. Many people naturally feel

sympathetic for animals when they are shown footage of the

standard practices in animal industries. Small improvements in

animal welfare help these people to rationalize their moral

discomfort. They have an easy out telling themselves that they

have “taken steps to fight animal suffering” when no real

progress has been made. For example, consider California’s

Proposition 2 which requires that “calves raised for veal, egg-

laying hens and pregnant pigs be confined only in ways that allow

these animals to lie down, stand up, fully extend their limbs and

turn around freely.” In reality, such a law represents an

improvement so minor that it is really only a move from torture

and enslavement to enslavement with slightly less torture. Other

states have banned tail docking--the practice of cutting off a

cow’s tail without anesthetic--and have instituted other animal


welfare reforms, partially in response to undercover exposés.

Small reforms make people who would exploit animals for their own

pleasure feel better about themselves without providing any

significant improvements to the lives of animals.

Consider some parallel cases. First, consider the case of

world poverty. Many people feel bad about poverty and are

legitimately troubled by the suffering. Periodic donations to

the Red Cross or other charitable organizations might make many

people feel like they are doing something about the problem, and

this might make them feel less guilty about what leads to our

relative affluence. However, by refusing to address the root

causes of poverty, the problem is guaranteed to continue.xii In

essence, "moral band-aids” (i.e., temporary charity) might do

more harm over time because they cool down people’s moral

indignation, but allow a system that perpetuates poverty and

suffering to continue. Second, consider our escalating

environmental problems. Here too it can be dangerous to give

people simple steps they can take to save the planet (e.g.,

recycling without changing society’s patterns of consumption)

instead of stressing the importance of meaningful changes to our

way of life, which necessitates systemic changes, because any

moral capital one’s movement had is wasted on an easy option that

ultimately does little to address the environmental challenges we

all face.


Even though we agree with Francione about the relative value

of the kinds of changes these exposés have often led to, we

contend that it is still important to reject ag gag laws for two

reasons. First, defenders of animal abolition do not have to,

and should not, put their weight behind trivial attempts to

improve the welfare of exploited animals. Instead, this gives

animal abolitionists an opportunity to stress the wrongness of

all animal exploitation. Namely, it allows us to use the moral

indignation aroused by these exposés of animal abuse to support

veganism as opposed to a mere single-issue campaign. More

precisely, it presents an opportunity to show what the sympathy

aroused in these case implies about other uses of animals.

Finally, it is important to stand our ground against ag gag

laws because restrictions on activism are becoming increasingly

oppressive. Radical activists involved in sabotage, arson and

vandalism have been given draconian sentences with terrorist

enhancements that far outstrip the penalties deserved for their

actual crimes. Ag gag laws are a further escalation of the war

against activists which is evidenced by the label “terrorist”

being extended to relatively tame, mainstream groups like the

Humane Society and Mercy for Animals who scrupulously abide by

the law and work “within the system.” Targeting the activities

of these mainstream groups is clearly an example of industry

overreach and the pernicious impact of corporate influence on

public policy. By fighting hard against ag gag laws, we can also

bring attention to other attacks on more radical activism.


Namely, a critique of ag gag laws can start a slippery slope in

the other direction so that, for example, mere property

destruction and non-violent acts of conscience do not lead to

twenty year prison terms and the label “terrorist.”

3. CONCLUSION

According to Martin Luther King Jr.’s, “Letter to a

Birmingham Jail,” “In any nonviolent campaign there are four

basic steps: collection of the facts to determine whether

injustices are alive, negotiation, self-purification and direct

action” (King). Undercover investigations at animal facilities

are an integral part in uncovering injustice and, as such, an

important first step in seeking justice for animals, workers and

the environment. Ag gag laws would suppress attempts to uncover

and expose abuse in violation of the first amendment ensuring

that our public policy is informed only by a heavily censored

version of the facts. However an informed citizenry is essential

to a healthy democracy. Further a free press is essential to an

informed citizenry: a healthy democracy needs a free press

including investigative journalists who are not afraid of being

labeled terrorists for doing their job. George Orwell is

attributed with saying that “journalism is printing what someone

else does not want printed: everything else is public

relations.” Gag laws would reduce reporting on animal

agriculture and animal industries to public relations. Finally

ag gag laws represent an attempt to silence dissent—particularly


ag gag laws aim to silence those who are concerned with the use

and abuse of animals in our culture. But a healthy democracy

also needs real dissent to make sure that we question our morally

suspect assumptions. Ag gag legislation would silence dissent in

a way that is dangerous to a free society. For these reasons it

is important for defenders of animal rights, as well as anyone

who cares about free and open debate, to come out in strong

opposition to ag gag laws.

NOTES

i This term was coined by Mark Bittman in an April 2011 New York Times article, “Who Protects Animals?”ii Hereafter, animals.iii Section 2. D. “Animal or ecological terrorist organization” means any association, organization, entity, coalition, or combination of two or more personswith the primary or incidental purpose of supporting any {optional language insert “politically motivated”} activity through intimidation, coercion, force, or fear that is intended to obstruct, impede or deter any person from participating in lawful animal activity, animal facility, research faculty or the lawful activity ofconstruction, mining, foresting, harvesting, gathering or processing natural resources. iv Section 3.3. “Participating in or supporting animal or ecological terrorism to include raising, soliciting, collecting or providing any person with material, financial support or other resources such as lodging, training, safe houses, false documentation or identification, communications, equipment or transportation, that will be used in whole or in part, to encourage, plan prepare or carry out, publicize, promote or aid an act of animal or ecological terrorism the concealment of, or an escape from, an act of animal or ecological terrorism.v Section 5. {Terrorist Registry] There is hereby created the registry of animal and ecological terrorists. A person who is convicted of or pleads guilty to an act that violates any section of the Animal Ecological Terrorism act shall be registered with the Attorney General on a form prescribed by the Attorney General. The registry shall contain the name, a current residence address, a recent photograph and signature of the offender. The offender is required to provide written notice to the Attorney General regarding any change in name or residence address within thirty (30) days of making the change. The Attorney General shall create a website containing the information set forth in this paragraph for each person who is convicted or pleads guilty to a violation of this Act. Information regarding an offender shall remain on the website for no less than three (3) years at which time the registrant may apply to the Attorney General for removal after a hearing on the application for removal.vi The California law only covers laboratory facilities and not agricultural facilities.vii One logger was injured after a defective chain saw broke apart after hitting a tree spike. Normally chain saws will stop when they hit metal, rock or cement (this is a safety feature built into saws). However, this saw malfunctioned causing injury to the logger. In addition, the activists warned the logging company that the trees in the area were spiked.viii The Animal Liberation Front’s Guidelines are explicit about avoiding injury to animals and humans. According to guideline number four “ALFers” are “to take all necessary precautions against hurting any animal, human and non-human.” Animal Liberation Front, “Guidelines,”http://www.animalliberationfront.com/ALFront/ALFPrime.htm#ALF Guidelines.ix Property damage could conceivably be classed as terrorism only if the property damage is an indirect of death. For example, consider a terrorist group that poisons all the well water in a small town. Although the poisoning of water is property damage, it can be considered terrorism as the poisoned water will foreseeably be consumed causing the death of the townspeople. Other examples might

be destroying all the available supply of an important vaccine or the destruction of all the health care facilities in a region. Animal and environmental activists have not engaged in this type of property damage.x We thank Jeff Johnson for pointing out this important difference between the two cases.xi We thank Jeff Johnson for pointing out the difference in AMVA care practices forcompanion animal and food animals.xii See Thomas Pogge, “Eradicating Systemic Poverty: brief for a global resources dividend,” Journal of Human Development 2, No. 1, (2001).

Works Cited

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Carlson, Cody. “Ag Gag Laws: Hiding Factory Farm Abuses from Public Scrutiny.” The Atlantic, March 20, (2012), Web.

“Debate: After Activists Covertly Expose Animal Cruelty, Should They Be Targeted With "Ag- Gag" Laws?” Democracy Now! April 9, (2013), Web.

---. “Undercover Activist Details Secret Filming of Animal Abuse & Why "Ag-Gag" Laws May Force Him to Stop.” Democracy Now! April 9 (2013), Web.

“Privatized Poultry Inspection: USDA’s Pilot Project Results,” Food and Water Watch, Web.

Francione, Gary L. “A Brief Note on ‘Ag Gag’ Laws.” Animal Rights: The Abolitionist Approach (2013), Web.

Galli, Cindy, Avni Patel and Rym Momtaz. “Butterball Turkey Raided Amid Animal Abuse Allegations,” December 29 (2011), Web.

Goodman, Amy. “How to Feed Democracy: Interview with Ocean Robbins.” Food Revolution Summit (2014), Web.

Harris, Shane. “The Terrorism Enhancement: An Obscure Law Stretches the Definitionof Terrorism, and Metes out Severe Punishments.” National Journal (2007), Web.

Huffstutter, P.J. “Criminal Charges Filed in Food Safety Case against Iowa Egg Farm,” Reuters, May 21 (2014), Web.

King, Martin Luther Jr., “Letter to a Birmingham Jail,”

Landis-Marinello, Kyle H. “The Environmental Effects of Cruelty to Agricultural Animals,” Michigan Law Review 106, no. 147 (2008): 147-151.

New York Times Editorial Board. “Eating with our Eyes Closed.” New York Times. April 9 (2013), Web.

Oppel, Richard A. Jr. “Taping of Farm Cruelty is becoming the Crime,” New York Times, April 6 (2013), Web.

Phillips, Susan. “Pennsylvania Doctors Worry over Fracking Gag Rule.” NPR. May 7, (2012), Web.

Philpott, Tom. “USDA Ruffles Feathers with New Poultry Inspection Policy.” Mother Jones. April 24 (2013), Web.Polis, Carey, “Butterball Turkey Raid leads to Criminal Charges and Arrests,” Huffington Post, February 16, (2012), Web.

Porter, Will, “Australia Risks Copying US Ag Gag Laws to Turn Animal Activists into Terrorists”, The Sydney Moring Herald, May 1 (2014), Web.

---. “Eco-terrorism and the Green Scare,” greenisthenewred.com, Web.

---. “FBI Says Activists Who Investigate Factory Farm can be prosecuted as Terrorists,” greenisthenewred.com, December 20 (2011), Web.

---. Green is the New Red: An Insider’s Account of a Social Movement Under Siege. San Francisco: CityLight Books, 2011.

Southern Poverty Law Center, “Eco-Violence: The Record,” Southern Poverty Law Center Intelligence Report 107 (2012), Web.

US Government Accountability Office, “HMSA—Actions are needed to Strengthen Enforcement,” GAO-10-203. February (2010), Web.

USDA: Office of the General Inspector, “Food Safety and Inspection Service--Inspection and Enforcement Activities at Swine Slaughter Plants” Audit Report 24601-0001-41, May (2013), Web.

Woodhouse, Leighton Akio. “Charged with the Crime of Filming a Slaughterhouse,” The Nation, July 31 (2013), Web.

Gagging on Ag Gag: On the Evils of Agricultural Gag Laws

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