Iowa’s ‘ag gag’ has stifled investigations, despite pending court challenges

By: - November 27, 2020 12:00 pm

The legality of Iowa’s controversial “ag gag” law, designed to block undercover investigations at agricultural facilities, could soon be decided by a federal judge.

The case is being watched closely by agricultural giants, labor unions, dog breeders and animal-welfare organizations around the country. Currently, a temporary injunction prevents Iowa from enforcing the 2019 law, and an appeals court is considering a lower-court decision striking down an earlier, 2012 version of the law.

Although a trial on the constitutionality of the new law is tentatively scheduled for February, it’s more likely the case will be decided without a trial since the basic facts are not in dispute.

In recent years, similar ag gag laws were struck down by courts in North Carolina, Kansas, Utah, Idaho and Wyoming. Even so, and despite the previous court ruling that said Iowa’s 2012 ag gag law was unconstitutional, the laws are having an effect.

The Animal Legal Defense Fund and People for Ethical Treatment of Animals — two of the plaintiffs suing over the 2019 law — say that in the years leading up to the passage of Iowa’s 2012 ag gag law, there were at least 10 undercover investigations at farming and slaughterhouse operations in Iowa. Between 2012 and 2018, there were zero investigations, they say.

The investigations the law seeks to prohibit typically involve activists or journalists obtaining a job in a facility through normal channels, and then documenting conditions there with a hidden camera while performing the tasks required of them as employees. Actively or passively, the investigators conceal their underlying motives for seeking employment, as well as their affiliation with any journalistic or advocacy groups.

Although undercover investigations have been used in ag facilities in Texas, North Carolina, Nebraska and Oklahoma, Iowa is often the focal point of animal-welfare investigations. That’s due to the state’s dominance in certain ag-related industries. Iowa is by far the nation’s biggest producer of pigs raised for meat and is also the country’s top egg producer.

“Given Iowa’s prominent role in animal agriculture, the ALDF and PETA have a strong desire to conduct undercover investigations at facilities in the state,” the plaintiffs have acknowledged in court filings. The ag gag laws, they say, are intended to thwart that effort.

“These laws have been promoted by ALEC, the American Legislative Exchange Council, which is a conservative legislative group, and the U.S. Chamber of Commerce,” said David Muraskin of Public Justice, one of the plaintiffs’ attorneys in the Iowa cases.  “They create model legislation around the country, and state legislators, some of whom are bought and paid for by corporations, just copy and paste that model legislation into their statutes.”

In defending the Iowa law, the state’s attorney general has quoted former Gov. Terry Brantsad as saying, “If somebody comes on somebody else’s property through fraud or deception or lying, that is a serious violation of people’s rights — and people should be held accountable for that.”

The legal fights date back to 2012, when state lawmakers approved Iowa’s original ag gag law, which criminalized undercover investigations at meatpacking plants, factory farms and slaughterhouses. In 2017, the ALDF, PETA, the Center for Food Safety and others, sued the state, challenging the constitutionality of the law.

In 2019, U.S. District Judge James Gritzner granted summary judgment to the plaintiffs, ruling in their favor without the need for a trial. After finding the law was facially unconstitutional and violated the First Amendment, the judge blocked the state from enforcing it. Within three weeks of the judge’s decision, the Iowa Legislature was considering a new version of the law that passed through subcommittees, committees, and both chambers in just 11 days.

On March 14, 2019, Gov. Kim Reynolds signed the bill into law. As with the 2012 law, the new version criminalizes undercover investigations agricultural facilities, but in a slightly different manner.

While the 2012 law made it a crime to obtain access to an agricultural production facility by false pretenses if the intent was to do something not authorized by the company, the new law criminalizes the use of deception in seeking employment if the intent is to cause  “economic harm or other injury.”

Individuals convicted of violating the law face up to a year in jail and up to $1,875 in fines for a first conviction. A second offense can result in up to two years in jail and up to $6,250 in fines.

In addition to farms and meatpacking plants, the new law is thought to apply to dog-breeding operations, sometimes referred to as “puppy mills.”  That’s because the law defines an “agricultural animal” to include any animal that is “maintained for its parts or products having commercial value.” Iowa is home to roughly 250 dog-breeding operations, at least 15 of which have been cited for animal-welfare violations.

They plaintiffs claim the 2019 law criminalizes labor organizing because some prospective employees might apply for a job with the unstated intent of promoting unionization — a practice that’s protected by federal law — or to document unsafe working conditions, either of which could cause harm to the company.

In challenging the 2019 law, the ALDF and others argue that its legislative history demonstrates an “explicit intent of silencing or impeding speech by animal protection organizations.” They say the law does not simply regulate access to the facilities, but the speech that flows from that access through the release of information to the public, consumers and advocacy groups.

The state disputes that and says the ag gag law is “content neutral” and “serves purposes unrelated to the content of speech.”

The state also claims the law is simply an effort to outlaw trespassing and to ensure biosecurity and the protection of trade secrets and proprietary information. That could be difficult to prove given the law’s silence on biosecurity and trade secrets, which, like trespassing, are addressed by other longstanding state laws.

Some of the public statements made by state legislators who backed the law are likely to be considered by Judge Gritzner, just as they were in his previous court ruling. Although some of the lawmakers openly spoke of the need to guard against bioterrorism, Rep. Jared Klein, a Washington County Republican who introduced the bill, said he could not “stand by and allow [Iowa farmers] to be disparaged in the way they have been.” Sen. Ken Rozenboom, a Republican from Oskaloosa, said “agriculture in Iowa deserves protection from those who would intentionally use deceptive practices to distort public perception of best practices to safely and responsibly produce food.”

In early 2020, an animal rights group claimed to have uncovered animal neglect at a pig facility co-owned by Rozenboom. The California-based organization Direct Action Everywhere released an assortment of photos and videos documenting their findings at the lawmaker’s farm, and said one piglet was unable to stand, was gasping for air while thrashing about, and then died as they watched. Rozenboom subsequently acknowledged problems at the facility but called the investigation a “professional hit job,” adding that the Direct Action investigators gained access to his facility without permission. A later investigation found no evidence of abuse at the farm.

In defending the 2019 law, lawyers in Iowa’s attorney general’s office are making some of the same arguments to Judge Gritzner as they did when unsuccessfully defending the 2012 law, saying in court filings that they do so “in the hope that the court will view the arguments in a new light.”

The state points out that the law doesn’t apply to whistleblowers who obtain employment without deception and then record wrongdoing in the facility, and is instead designed solely to “punish those with nefarious motives.”

As for “nefarious” motives, the ALDF points put that the exposure of wrongdoing in the ag industry has led to criminal prosecutions and reforms within the industry. It says that in 2011, an undercover investigation at Iowa Select Farms showed workers hurling piglets onto a concrete floor. That same year, investigators at Iowa’s Sparboe Farms documented hens with gaping, untreated wounds laying eggs in cramped conditions among decaying corpses. In 2008, PETA used undercover investigators at a Hormel Foods supplier in Iowa to document workers beating pigs with metal rods, sticking clothespins into pigs’ eyes and other acts of cruelty. That investigation, the ALDF says, resulted in 22 charges of livestock neglect and abuse against six individuals, all of whom later admitted guilt.

Matthew Strugar, a Los Angeles attorney representing the plaintiffs in both Iowa lawsuits, says he expects that Judge Gritzner will issue a ruling on the 2019 law without taking the matter to trial — but the judge may first wait to see what the Eighth Circuit Court of Appeals has to say about his ruling on the 2012 law.

“The only question is, ‘Does this law violate the First Amendment?’ — and for that you don’t need a trial,” Strugar said. “So I don’t think the court anticipates this going all the way to a trial. But what I imagine the judge is doing now is waiting to see how the Circuit Court rules, just to see if he can benefit from their reasoning.”

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing.