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January 10, 2018

Another Crack in the Armor of Ag Gag Laws

 |  By: Dairy Talk

The announcement that the 9th Circuit Court of Appeals in Seattle struck down a good portion of Idaho’s so called “Ag Gag” law in early January doesn’t mean the evisceration of such laws elsewhere in the country. But it is one more indication such laws will likely have trouble standing up to close constitutional scrutiny over free speech.

The Idaho law has been on the books for nearly three years, and it tried to prohibit activist groups from coming on to farms to videotape, record practices and then release them to the public.  Writing for the 2-1 majority, Circuit Judge Margaret McKeown wrote the law was “classic example of a content-based restriction that cannot survive strict scrutiny.” She also said the law was largely “targeted at speech and investigative journalists.”

Equating animal rights activists with trained investigative journalists is a stretch, at best, since these activists are not seeking objective truth but are hell-bent on shutting down animal agriculture by any means possible. Nevertheless, in the eyes of the court, anyone with a phone is a citizen journalist, no matter their motive or agenda.

Still, the Court decision doesn’t automatically negate Ag Gag laws in the 10 other states where they are currently on the books. “This isn’t the first time ag-gag laws have been challenged,” says Leah Ziemba, an attorney with Michael Best Friedrich in Wisconsin. There already have been challenges to such laws in Iowa and Utah.

Whether the laws in other states stand up to court scrutiny “will come down to the specifics of [each] statute, depending on how broad or narrow each is written,” she says. But the Idaho case is an effort by animal rights groups to get these laws over-turned at the highest level.

The Appellate Court decision did uphold a portion of the Idaho law that criminalizes making misrepresentations by anyone to obtain records of ag facilities or obtaining employment with the intent to cause harm. And farms are still protected by trespass laws, says Ziemba. Entering a farm by force, threat or trespass is still a crime.

The problem comes when individuals are allowed onto farms as guests or employees. Even though you may request guests not videotape or require employees not to use cells phones while at work, once they have recorded video it appears there is little you can do to stop the videos from going viral.

You might be able to sue an employee for posting a video if he/she signed a document or employee handbook that prohibits cell phone use while at work. But even that can be counterproductive. Animal rights activists have used such suits to fund raise with the public, garnering tens of thousands of dollars in go-fund-me campaigns. Even if you win, animal rights groups might have little in assets to go after or have set up corporate shell structures that isolate those assets.

Frustrating as it is, the best defense continues to be employee hiring, training and supervision. “It reinforces the approach we are taking with the FARM Program (Farmers Assuring Responsible Management),” says Jim Mulhern, president and CEO of the National Milk Producers Federation. “The videos that get traction are the ones that can’t be defended.”

Your focus, he says, should be in vetting job candidates, thoroughly training those you hire, supervising them after they are hired, and creating a culture that allows employees to come to you with concerns as soon as they arise.      

You are also perfectly within your rights to ask job candidates if they are a member of an animal rights group or support such groups. Having applicants sign animal care documents also is important. “Farmers should do these types of things because they offer some protection, but they’re not a slam dunk,” says Mulhern.        

This might seem trite. But if you’re thorough in your hiring practices, ask for and check references and have job applicants sign a lot of documents, under-cover activists might simply view your farm as less of any easy target. They simply might move on to another farm that offers easier access.

Perhaps therein lies the message: Farms are on their own to protect themselves, and yet, every farm is in this together to protect the industry and one another.

SIDEBAR: Protect Your Farm from an Animal Rights Attack

Source: FARM Program

Do the right thing. Above all else, make sure your farm is exceeding all expectations for animal care, cleanliness and environmental responsibility whether there is a camera on you or not.

Hire the right people. Do background checks, reference checks and ask for Social Security cards. Put new hires on probation and watch them closely. If it doesn’t feel right, it probably isn’t. And if a potential hire is suspicious, share that information with other farmers.

Empower your farm workers. Let them know of their importance as a team member in caring for the cows properly, protecting your farm, and that you expect them to immediately report any strange behaviors or actions.

Report animal abuse. Establish a culture in which employees feel comfortable reporting any willful acts of mistreatment to you. Any animal abuse should be reported to the appropriate authorities. Post signage around the farm to remind employees of acceptable actions.

Partner each new hire with a trusted employee. The new employee will learn best practices for your farm, and you’ll benefit from another set of eyes watching them closely. Don’t be shy about asking other employees about the new worker.

Set expectations for animal care. If you don’t have them, establish animal care protocols and train your employees. Require ANY farmer worker that handles animals to sign a document stating that they understand your animal care expectations, and ask them to immediately report any actions that do not comply. Example protocols, dairy cattle care and ethics agreements, training records and more resources can be found at www.nationaldairyfarm.com

Stay in touch. If you are suspicious of any activity, contact your cooperative or milk processor and local/regional dairy checkoff organization immediately.

SIDEBAR: Onboarding Employee Tips

Source: FARM Program

• It is legal to ask a potential employee if he or she is a member of, or if they support, an animal rights organization. Ask during the interview or on the employment application.

• Ask if the prospective employee is living in transient housing; ask how long they have lived in the area; ask if they have experience working in agriculture.

• Require employees to sign a non-disclosure and confidentiality agreement. The agreement should also include a clause for liquidated damages for take or distributing photographs or video. If the employee violates the agreement, they may be subject to legal action and damages.

• Verify previous employment. Ask prospective employees for references; then contact references to verify previous employment.

• Check social media/Google. Search for prospective employees on Google, Facebook, Twitter and Instagram. See what kinds of things they have posted and also look at the pages they like or follow.