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Bulletin:Summer 2011, Volume 16, Number 3

States Consider Banning Undercover Recording at Agricultural Operations

Iowa, Florida, and Minnesota Bills Could Hinder Investigative Reporting

During their 2011 sessions, state legislatures in Iowa, Minnesota, and Florida considered bills that would criminalize recording undercover videos of agricultural operations, drawing First Amendment concerns from animal rights activist groups and media who argued the bills could outlaw journalistic investigations that expose unsafe and unsanitary farming conditions.

For some years, the agricultural industry has argued that videos shot and released by animal rights groups present a distorted view of their operations and unfairly represent meat production practices. Criminalizing the production of the videos, industry officials say, would deter animal rights organizations from distributing misleading videos and prevent contamination of agricultural facilities.

On March 17, 2011 the Iowa House of Representatives passed H.B. 589, a broad bill that proposed blocking the recording of images or sounds at agricultural facilities without owner consent. However, the Iowa Senate did not pass the bill before the legislative session ended. Under the bill, a person would be guilty of “animal interference” if he or she produced “a record which reproduces an image or sound occurring at the animal facility,” possesses or distributes “a record which produces an image or sound occurring at the animal facility,” or entered “onto the animal facility, or remains at the animal facility, if the person has notice that the facility is not open to the public.” The bill also applies to “crop operation interference,” using identical language to the “animal interference” provisions, but replacing the word “animal facility” with “crop operation.” Violation of the law as a first offense would be charged as an aggravated misdemeanor, further offenses a Class D felony. The proposed law would not apply “to an animal shelter, a boarding kennel, a commercial kennel, a pet shop, or a pound.”

Under the Iowa bill, a person would also be guilty of “animal facility fraud” if he or she willfully obtained access to an animal facility or a crop operation through “false pretenses for the purpose of committing an act not authorized by the owner.” This would include making “a false statement or representation as part of an application to be employed.”

Similar legislation with nearly identical language was introduced in Florida and Minnesota in March 2011 and April 2011, respectively. The Florida and Minnesota bills would also ban covert recording of farming practices, distributing those recordings, and punish individuals who took jobs at farms with the purpose of gaining access to record the facility’s practices.

The Florida bill, S.B. 1246, differed only slightly from the Iowa and Minnesota legislation by explicitly listing photography separately from “images” and recordings. The Iowa and Minnesota bills had a broader definition of “image” that could also include still photography. The Florida bill passed the Senate, but died in the House after no vote was taken before the end of the session. The Minnesota legislation, H.B. 1368, did not pass the House or Senate before the legislative session ended.

Though the bills died at the end of their states’ legislative sessions, they are likely to be reintroduced. Jacksonville, Fla. television network First Coast News reported that Sen. Jim Norman (R-Pasco), the author of the Florida bill, said he intends to file the bill again next year. The Associated Press (AP) reported on June 13 that the Iowa measure “initially had plenty of support, reflecting the importance agriculture holds in a state that leads the nation in production of corn, soybeans, hogs and eggs. Although most Iowa residents live in cities, agriculture remains important [to] them and is a powerful force in the Legislature.”

Lawmakers, bill proponents, and industry officials cited concerns about contamination and negative publicity as their central reasons for proposing the laws. On May 5, 2011, The New York Times reported that proponents of the bills said undercover investigators could bring disease into facilities. “There’s viruses [sic] that can put these producers out of business, whether it’s cattle, hogs or poultry,” said Iowa Senate President John Kibbie (D-Emmetsburg), a supporter of the ban.

More frequently, however, legislators and farming groups said they want to prevent fraudulent job seekers from shooting videos that give unfair perspectives and are used for publicity rather than reporting animal abuse to authorities. The AP reported on March 14, 2011 that bill proponents argued that people with concerns about abusive practices should report them to the police and seek to prevent them through other channels. The AP reported that in 2009, a video shot at a Spencer, Iowa chicken hatchery was released which included footage of male chicks “being tossed into grinders,” but no complaints were ever filed about the hatchery. Tom Shipley, a lobbyist with the Iowa Cattlemen’s Association, told the AP “we believe [a new law] can help prosecute people who, while they claim to have animals’ interests at heart, don’t really follow through and report the animal abuse — if in fact there actually is anything — immediately like they’re required to.” Shipley said activists “hang on to that information for publicity purposes.”

Minnesota Sen. Doug Magnus (R-Slayton) told the Minneapolis Star Tribune in April 2011 that the Minnesota bill was aimed at preventing harassment and sabotage of facility operations. “These people who go undercover aren’t being truthful about what they’re doing,” he said. According to a March 15 report in The Des Moines Register, Iowa lawmakers have claimed activists from People for the Ethical Treatment of Animals (PETA) shot a video in 2008 but did not turn it in to law enforcement for six weeks after it was recorded. The video showed employees of a farm near Bayard, Iowa abusing sows. In a March 17 interview with Des Moines TV station KCCI Rep. Annette Sweeney (R-Alden), the Iowa bill’s sponsor, alleged that some undercover videos of animal facilities are “staged.” States News Service reported May 5 that PETA’s general counsel sent a letter to Sweeney asking her to “cease and desist from making defamatory comments regarding PETA’s undercover investigation footage.”

Meanwhile, animal rights advocates say the legislation unconstitutionally infringes on free speech and would have a chilling effect on whistleblowers trying to bring attention to cases of animal cruelty, according to the April 9 Star Tribune report. Howard Goldman, Minnesota director of the Humane Society of the United States, called the Iowa, Minnesota, and Florida bills “an attempt to criminalize whistle-blowing at a time when we need more transparency about animal welfare, not less. It goes after people with a really broad brush.” The New York Times reported May 5 that the bills, if passed, “could run afoul of the Supreme Court’s ruling last year in United States v. Stevens.” In Stevens, the court held that a federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was substantially overbroad, striking it down on the basis that it was facially invalid under the First Amendment. United States v. Stevens, 130 S.Ct. 1577 (Oct. 6, 2009) (See “Supreme Court Strikes Down Law Banning Depictions of Animal Cruelty, Citing ‘Alarming Breadth’ of Statute” in the Winter/Spring 2010 issue of the Silha Bulletin.)

According to The New York Times, under the bills, taking a picture of any agricultural facility or crop operation, even while standing on public property, would be illegal. Although much of the media attention focused on the bills’ provisions governing animal facilities, at least one media advocacy group raised concerns about the breadth of the proposed legislation. The National Press Photographers Association (NPPA) decried the broad nature of the Florida and Iowa bills in two blog posts on the Advocacy Committee section of its website. In a March 18 post, NPPA Advocacy Chair Alicia Calzada wrote that the Iowa bill’s language “elevates editors and news organizations to the status of criminals if they publish, or even possess undercover footage of farms, crops or animal facilities.” Calzada wrote on March 2, “we contacted the offices of the author of the bill and NPPA Attorney Mickey Osterreicher has received assurances from staff members that the bill is being amended to specifically relate to trespassers on private property.” Despite the assurances, Calzada wrote that criminalizing photography made her “very uncomfortable.”

On April 15, the Quad City Times of Davenport, Iowa noted opponents’ First Amendment argument that the Iowa legislation “would outlaw undercover journalistic investigations that seek to expose potentially unsafe and unsanitary conditions for animals, workers, and consumers.” Iowa state senator Matthew McCoy (D-Des Moines) told The New York Times that he introduced amendments to weaken or block the bill because “he was worried that it would open Iowa to abuses that could jeopardize food quality and undermine the very agricultural interest supporting the legislation.” McCoy said, “if they have nothing to hide and they are operating ethically, they should have no fear.” In an interview with National Public Radio (NPR) for its April 13 “Morning Edition” program, McCoy said a bill that limits opportunities for industry oversight “could set a dangerous precedent.”

Rose Acre Farms Manager Andrew Kaldenberg told NPR during its April 13 “Morning Edition” broadcast that he welcomes reporters because his farms have nothing to hide. Rose Acre Farms is one of Iowa’s largest chicken farms and egg producers. In February 2010, an undercover activist from the Humane Society recorded footage at Rose Acre Farms of “chickens living in cramped cages and some dead birds whose carcasses were left so long they’d been mummified,” NPR reported. The Humane Society released the video three months later. Kaldenberg said the farm’s real problem is with activist organizations that are promoting “an agenda which is vehemently against how the industry produces food” and people who misrepresent their true purposes for getting hired. “Morning Edition” reported that large chicken, hog, and cattle organizations said the pending Iowa legislation was mischaracterized, and that it was not meant to prevent whistleblowing but rather to keep people who misrepresent themselves from getting hired.

The New York Times reported on May 5 that Iowa legislators answered whistleblowing concerns with two amendments after the state’s attorney general expressed problems with the initial bill. The first provision would require a person to turn over all recordings of suspected criminal activity at agricultural facilities to authorities within 72 hours of their occurrence. Anna Dey, a lobbyist and staff attorney for the American Civil Liberties Union of Iowa, told The New York Times that the provision effectively eliminated the possibility for extended undercover operations and “constitutes a warrantless seizure of property.” The second provision recommended striking all of the bill’s language and replacing it with a change to the state’s trespass law, The Times reported. Posing as a worker is often the way activist groups or journalists gain access to agricultural facilities. Undercover videos shot by the Humane Society of the United States showed workers slamming chickens into metal bins and dead birds littering cages at the nation’s largest egg farms, according to a Los Angeles Times article on April 8, 2010. The organization’s efforts caught the attention of companies like Wendy’s, Sonic Corp., and the parent company of IHOP and Applebee’s, all of which shifted to using cage free eggs, the Los Angeles Times reported. Wal-Mart Stores, Inc., the world’s largest grocer, said in February 2010 that the eggs sold under its own label are now cage free. In an AP report on June 13, Humane Society spokeswoman Carol Rigelon said opponents of the bills were careful to avoid being critical of agriculture as an industry. “What we’re trying to do is expose things that might not otherwise be exposed and as a result make agriculture even better,” Rigelon said.

If the bans on undercover recording at agricultural facilities pass state legislatures in the future, it would not be the first time the agricultural industry has successfully lobbied politicians to pass laws that protect the industry from criticism of its food safety practices. In the mid-1990s, 13 states enacted statutes that made it easier for producers to sue critics of their food products for libel. These “food libel laws” or “veggie libel laws” authorized food producers to sue individuals who disparaged a food product with information unsupported by a reliable source. Disparagement in these types of situations is generally defined as giving false information claiming that an agricultural product is not safe for human consumption.

In a commentary for Legal Times in 1998, Ronald Collins, then-director of the FoodSpeak Free Speech Project and Paul McMasters, then-First Amendment ombudsman at The Freedom Forum, argued that the “veggie libel laws” could lead to a chilling effect on anyone who wanted to speak out about food, including journalists and non-profit organizations.

The “food libel laws” have not been used often, but they gained notoriety when Texas’ food disparagement law was used in a case against The Oprah Winfrey Show in 1998. Texas feed yard owners claimed that Winfrey’s statement that she would not eat a hamburger again for fear of getting mad cow disease caused a decrease in beef sales. The feed yard owners ultimately lost the case. Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (N.D. Tex. 1998)

An Ethical Debate over Undercover Journalism

Although some courts have protected the news media’s ability to conduct undercover investigations with hidden cameras, the practice has come under scrutiny. Media ethics experts have cautioned excessive use of hidden cameras. Bob Steele, a journalism ethics professor at DePauw University, developed a set of guidelines for news organizations to use when considering an undercover story, entitled “Deception/Hidden Cameras Checklist: When might it be appropriate to use these tactics?” The checklist, which Steele developed while he was an ethics scholar at journalism think tank the Poynter Institute, says the information should be of “profound importance” and “vital to public interest, such as revealing failure at top levels, or it must prevent profound harm to individuals.” He also cautioned that deception or hidden cameras not be used unless “all other alternatives for obtaining the same information have been exhausted,” among other factors. Steele’s checklist is available online at http://www.poynter.org/uncategorized/744/deceptionhidden-cameras-checklist.

– Holly Miller
Silha Research Assistant

September 1, 2011