By: Alison Cox, Staff Member
A Senate committee in the Kentucky General Assembly recently approved a bill that would make it a crime to film farm operations on private property without the owner’s consent. The Senate Agriculture Committee attached this legislation to House Bill 222, a bill designed to set euthanasia standards for shelter animals.
The new language has created public policy concerns by animal rights activists, as well as questions of constitutionality. Kentucky State Representative Joni Jenkins said that the language added by the Senate committee made the bill “more complicated, and maybe even unconstitutional.”
The Kentucky Legislature won’t pass House Bill 222 easily due to high public scrutiny.
This new language would subject a person to a Class B misdemeanor, punishable by up to 90 days in jail and a $250 fine, for secretly recording farm operations on private property.
The bill, however, does not apply to law-enforcement officials and farming operations on public property.
The Humane Society has dubbed this bill the latest issue of “ag-gag” legislation.
The Human Society defines an “ag-gag” bill as any bill that seeks to criminalize whistle-blowing on factory farms, and as a result keep Americans in the dark about where their food is coming from.
Matt Dominguez of the Humane Society has said such bills, “go to show how much the industry has to hide.”
Not only will the bill potentially keep Americans in the dark, but it may also be a violation the First Amendment, as the bill is very much directed at restricting speech. The First Amendment does not free undercover investigators from civil or criminal liability, even if they ultimately produce an accurate video that serves the public good. But, this type of bill represents the broadest approach to “ag-gag” laws because these laws could potentially implicate a wide range of otherwise innocent activities and may face strong First Amendment challenges for overbreadth and government restraint of content of expression.
Tennessee Governor Bill Haslam vetoed a proposed “ag-gag” law after the Tennessee Attorney General called the bill “constitutionally suspect.”
The Tennessee bill was just one of fifteen so called “ag-gag” bills that were both introduced and defeated in 2013.
However, in February 2014, Idaho became the seventh state to pass “ag-gag” legislation into state law
. The Idaho legislation criminalizes unauthorized recording inside agricultural facilities, punishable by up to one year in jail and a $5000 fine.
Though the Kentucky bill is controversial, the bill has found support. Kentucky Farm Bureau has supported the provision as a necessity to protect Kentucky farmers.
However, there are serious implications to public policy if farmers’ rights are protected in this way. The farmers may be able to be protected through other means.
The public policy concerns and the suspect constitutionality of the Kentucky provision seem to outweigh the argument of protecting the farmer’s rights, but the question remains as to whether Kentucky will join eleven states that failed to pass proposed “ag-gag” legislation in 2013 or whether it will join the likes of Idaho and pass the controversial legislation.
_________________
Cho Park, Critics: Kentucky Senators ‘Snuck’ ‘Ag-Gag’ Into Animal Rights Bill, ABCNews (Mar. 28, 2014),
http://abcnews.go.com/Blotter/critics-kentucky-senators-snuck-ag-gag-animal-rights/story?id=23098835
.
Id.
Jack Brammer & Janet Patton, Kentucky bill would prohibit filming of farm operations without owner’s consent, Kentucky.com (Mar. 25, 2014),
http://www.kentucky.com/2014/03/25/3160704/kentucky-bill-would-prohibit-filming.html
.
Id.
Park, supra note 1.
Anti-Whistleblower Bills Hide Factory-Farming Abuses from the Public, The Humane Society (Mar. 25, 2014),
.
Brammer & Patton, supra note 3.
Jessalee Landfried, Bound & Gagged: Potential First Amendment Challenges to "Ag-Gag" Laws, 23 Duke Envtl. L. & Pol'y F. 377, 395 (2013).
Taking Ag Gag to Court, Animal Legal Defense Fund,
http://aldf.org/cases-campaigns/features/taking-ag-gag-to-court/
(last visited Mar. 31, 2014).
Anti-Whistleblower Bills Hide Factory-Farming Abuses from the Public, The Humane Society (Mar. 25, 2014),
.
Ag-Gag Bills at the State Level, ASPCA,
(last visited Mar. 31, 2014).
Id.
Kentucky ‘Ag Gag’ Bill Targets Undercover Animal Investigation Videos On Farms, Huffington Post (Mar. 25, 2014, 5:59 PM),
http://www.huffingtonpost.com/2014/03/25/kentucky-ag-gag_n_5030196.html
.
Id. (discussing the fifteen proposed ag-gag bills introduced in eleven states in 2013).