Muckraking (Literally): Should It Be Illegal to Film Animal Abuse?

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A recent effort to document the abuse of horses raises new question over the legality of citizen journalism


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In March 2011, Lisa Friday's video camera made a difference. On a late winter day, Friday visited a herd of wild horses penned at the Bureau of Land Management's Butterfield/Herrimen holding facility in southwest Utah. What she saw there, and what she lawfully recorded, was appalling. "Never in my entire life have I seen animals in such squalor," she said this past weekend from her home in Virginia. "There was no place for any horse to escape."

Friday became interested in wild horses 12 years ago. In 2009, she adopted a captured mustang named "Rain." She then joined the board of directors of The Cloud Foundation, one of the most prominent wild horse advocacy groups in America. So, shortly after Friday left the horses in Utah that day in 2011, she shared her video with her colleagues at the Foundation. They promptly posted the video online. You can see all of it here.



The public furor from the grim video-- is this really how we treat our captured wild horses?-- caused the BLM to work toward fixing the problem. The feds promptly shipped some of those poor mustangs to slightly less odious places in Utah. And then the BLM announced it would permanently close the Herrimen site. There was no evidence of abuse, the BLM was quick to note at the time, but the "situation" Friday recorded was, indeed, "unacceptable."

New Technologies and New Problems For Industry

It's now axiomatic that current technology-- video cameras, cellphones, handhelds, whatever-- has made anyone and everyone a potential witness and that the Internet allows for every such witness to become, in effect, an international journalist. Dogged people like Friday (and the activists who film livestock) have done what they do for centuries in America (see, e.g., Upton Sinclair). What's changed is their ability to immediately bear their witness to the world.

The substantive issues that animate discussion about animal abuse are pretty much the same as they have always been. There are public safety concerns-- how does the food that reaches our plates get there and is it safe? There are legal concerns-- are the people who are handling the animals adhering to regulations, are they breaking the law? And there is the morality play-- we generally want animals to be treated "humanely," at least we say we do.

What's new here is how fast the social-media alarm system goes off when the answers to those questions aren't what they are supposed to be. There is no doubt that new technology has transformed the pace of the debate on animal abuse. For example, a generation ago, PETA could not have so quickly (and so cheaply) revealed to the world this horrifying evidence of animal abuse in Iowa. (Warning, this video shows terrible brutality and I've asked my editors not to embed it for that reason). 

Industry And Government React
 
Naturally, America's farmers and ranchers don't want such images to be so readily accessible to so many people so quickly. It's bad for business, it's terrible PR, and it raises legal and regulatory headaches. So while corporate tribunes dutifully say that the abuse is rare and unauthorized they've also pushed their local lawmakers (whose campaigns they help finance) to send a stronger message to activists (and others) who find ways to monitor animal welfare.

Last week, for example, Iowa became the first state in America to make it a crime to lie to get onto a farm to record images of animal abuse. In Utah, meanwhile, Gov. Gary Herbert, is poised this week to sign legislation that would go even further in shielding animal treatment from public view. Utah's statute would ban the photography of livestock without the permission of its owner-- a misdemeanor crime punishable by a fine and up to one year in prison.

This new iteration of laws, called "agricultural interference" statutes, are based upon the legal concept that private enterprise has a right to conduct its business mostly in private. They are based upon the political premise that the livestock industry warrants special protections that ordinary criminal law does not afford it; both Iowa and Utah, after all, have their own general trespass, nuisance and fraud laws that would cover the conduct covered here.

To wild horse activists, the legislative effort smacks of desperation. "I come from a livestock background," The Cloud Foundation founder and executive director Ginger Kathrens told me Sunday. "and my family was thrilled when people wanted to take pictures of us working with our cattle. If Utah livestock people have nothing to hide, then why are they attempting to legislate a blackout on their activities?"

The First Amendment Interest

It likely won't be long before someone is arrested and charged with these new state crimes. And thus it won't be long before we see lawsuit attacking the validity of the measures. Ken Paulson, President and CEO of the First Amendment Center, said Friday afternoon that "ag gag" bills like the ones at issue here likely will face "a significant First Amendment challenge." In an email, Paulson wrote:

Newsgathering is protected by the First Amendment, and that applies even if the gatherer is an advocacy organization. Any attempt to keep people from exercising their freedom of speech or press by preventing them from collecting information is going to be constitutionally suspect. It's particularly troubling in cases where the government is trying to use its power to prevent the public from documenting what many believe to be cruel treatment of animals.

Randy Parker, head of the Utah Farm Bureau, told the Salt Lake Tribune last week that the law is necessary because "activists can cajole disgruntled employees 'to manufacture circumstances to discredit animal agricultural operations... it's not for the animals, but it is politically motivated for their anti-meat agenda." The same article quoted a GOP lawmaker blaming "vegetarian people" for the "bad rap" the industry receives from animal abuse videos. 

Utah and Iowa will likely have to do more to legally justify their restrictions on free speech. For example, if all the "perpetrator" is doing is taking photos than where is the "interference" with "agricultural" business? Doesn't the "interference" come only afterward, and only then if what the images show are so disturbing as to force farms into changing their practices (or losing business)? And, if so, wouldn't the First Amendment protect the gathering of such images?

Not to state representative John Mathis, the Republican-- a veterinarian, if you can believe it-- who sponsored Utah's legislation. Last month, Rep. Mathis called the activists "terrorists" and said they were out to destroy his state's agriculture business. "There are groups with the stated purpose to do away with animal agriculture, and that's egregious," Mathis said. "The animal welfare movement has become an animal rights movement, and that's wrong."

Light And Heat

It's absurd-- the idea that farmers in Iowa and Utah are a persecuted group which needs special protection in the form of laws designed to chill the flow of information about matters of public health. It's ridiculous-- the notion that existing trespass and fraud laws can't do the trick. No wonder Katherine Heigl, the actress who lives in Utah, is so angry about what just been done there. The animals cannot speak for themselves, she says, so someone should.

Suzanne Roy, of the American Wild Horse Preservation Campaign, says the state measures are particularly dangerous because of the real and metaphysical distance hundreds of millions of Americans have these days from the source of their food:

This is about hiding the truth about conditions at animal agricultural operations from the public. At the horse slaughter summit in Las Vegas last year, the ranchers were bemoaning the urbanization of America and the fact that people have lost touch with where their food comes from. Now they are trying to crack down on photographic and video evidence that shows the public exactly where their food comes from.

The Utah law would not have prevented Lisa Friday from seeing those mustangs in March 2011. She had asked the BLM to see the facility, was granted permission to do so, and she  was on federal property anyway. Friday told me, in fact, that she has never had a problem from the authorities as she has chronicled the plight of our wild horses. Whether that now changes-- half a dozen other states are thinking about new "ag-gag" laws-- is another matter.

Every journalist, every advocate, every person who believes in the idea that "sunlight is the best disinfectant," every advocate of transparency, and even every person who cares about what they eat ought to be concerned by these laws. Put another way: If these industries need this much special protection from the collection of truthful images than it's awful to imagine what's happening to some of the animals who live in places the cameras have not yet found.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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