Fourth attempted Iowa “ag gag” law fails on first glance by a judge

(Beth Clifton collage)

“Ag gag” falls on summary judgement

            DES MOINES, Iowa––U.S. District Judge Stephanie Rose on September 26,  2022 struck down the latest of four attempts by the Iowa legislature to pass an “ag gag” law prohibiting activists and journalists from producing undercover video of activities inside factory farms,  feedlots,  and slaughterhouses.

Three of the four attempted Iowa “ag gags” have been found unconstitutional the first time they came before a judge.

Rose,  who earlier struck down the second attempted Iowa “ag gag,”  granted a motion for summary judgement sought by lawyers from the nonprofit law firm Public Justice,  representing the Animal Legal Defense Fund,  People for the Ethical Treatment of Animals,  the anti-“puppy mill” organization Bailing Out Benji,  Food & Water Watch,  and Iowa Citizens for Community Improvement.

“It is true that the [Iowa “ag gag” law] does not prohibit the editing,  publication,  or distribution of recordings or photographs on trespassed property,”  Rose wrote.

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“Act of recording is protected under the First Amendment”

“But it restricts the capture of such recordings or photographs,  rendering the remaining steps in the protected video production process impossible.  The act of recording is a necessary predicate to produce this protected speech and is protected under the First Amendment.”

“Monday’s ruling is the third time since 2017 that Iowa federal judges have struck down the state’s efforts to criminalize gathering evidence of animal abuse,”  recalled Rox Laird for Courthouse News.

“The matter has also been addressed by the U.S. Eighth Circuit Court of Appeals,”  Laird added,  “which held the original version of Iowa’s ag gag law violated the First Amendment.”

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Farmers can evict a trespasser,  but not suppress video

Summarized Laird,  “The newest version of Iowa’s law makes it a crime for a person committing a crime of trespass to knowingly place or use a camera or electronic surveillance device that transmits or records images or data while on the private property.  A first offense is an aggravated misdemeanor;  a second or subsequent offense is a felony.”

Observed Rose in her ruling,  “While it is constitutionally permissible” for a private property owner to exclude from their property someone who wishes to speak,   this is different from the government intervening to jail the speaker.

“This is what the government cannot do,”  Rose wrote.  The Iowa “ag gag,”  Rose found,  “creates criminal liability — enforced by the State of Iowa — based on an individual engaging in activity protected by the First Amendment.”

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Activists have not yet challenged law forbidding sampling

Elaborated William Morris of the Des Moines Register,  “Animal rights groups filed lawsuits challenging the constitutionality of the first,  second and fourth” Iowa “ag gag” laws.  The first law was initially blocked by a federal judge,  but was partially revived on appeal.  The second law also was blocked, and an appeal is currently pending.  The third law,  criminalizing ‘food operation trespass,’ was upheld by a judge after a criminal defendant sought to dismiss his charges on the grounds the law was unconstitutional.”

The Rose ruling,  explained Morris,  “concerns the fourth law, which was adopted in April 2021.

The groups [challenging the ‘ag gags’] have not challenged a separate provision of the fourth law, which criminalized taking soil,  water or animal fluid samples without consent.”

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U.S. Supreme Court doesn’t like “ag gags” either

Iowa attorney general Tom Miller,  a Democrat,  and governor Kim Reynolds,  a Republican who has vehemently endorsed “ag gag” laws,  did not immediately indicate whether they would appeal the Rose verdict to the Eighth U.S. Circuit Court of Appeals.

Both Miller and Reynolds were named in the lawsuit that overturned the “ag gag.”

The U.S. Supreme Court on April 25, 2022 rejected without comment an appeal by the State of Kansas against a January 2020 verdict by the U.S. District Court of Kansas,  upheld by the 10th U.S. Circuit Court of Appeals,  which in effect erased the oldest so-called “ag gag” law in the country,  adopted in 1990.

(See U.S. Supreme Court to Kansas:  Eat your ag-gag!)

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“Stifled speech critical of animal agriculture”

The U.S. Supreme Court left intact the finding by a three-judge appellate panel that the “ag gag” violated the First Amendment “by stifling speech critical of animal agriculture,”  Associated Press explained.

Like the Iowa “ag gag” that judge Rose found unconstitutional,  “The Kansas law made it a crime for anyone to take a picture or video at an animal facility without the owner’s consent or to enter the facility under false pretenses,”  Associated Press said.

The Kansas law was overturned by a case brought in December 2018 by a coalition also represented by Public Justice and led by the Animal Legal Defense Fund,  also including the Center for Food Safety,  Hope Sanctuary,  and the vegan sanctuary Shy 38, Inc.

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Mercy for Animals exposed Hy-Line

Agribusiness has stoked political momentum toward passing and enforcing an Iowa “ag gag” law since Mercy for Animals in September 2009 posted an undercover video exposé of operations at the Hy-Line North America chicken hatchery in Spencer,  Iowa.

This video,  amplified by mass media,  was the first time the U.S. public saw the live maceration process used to dispose of unwanted male hatchlings.

Described Mercy for Animals spokesperson Gary Smith,  “For the nearly 150,000 male chicks who hatch every 24 hours at this Hy-Line facility,  their lives begin and end the same day.  Grabbed by their fragile wings by workers known as ‘sexers,’  who separate males from females , these young animals are callously thrown into chutes and hauled away to their deaths.  They are destined to die on day one because they cannot produce eggs and do not grow large or fast enough to be raised profitably for meat.

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Live maceration

“Their lives are cut short when they are dropped into a grinding machine – tossed around by a spinning auger before being torn to pieces by a high-pressure macerator.

“Over 30 million male chicks meet their fate this way each year at this facility,”  Smith continued.

“For the surviving females,  this is the beginning of a life of cruelty and confinement,”  Smith added.  “Before even leaving the hatchery, they will be snapped by their heads into a spinning debeaker,”  where “a portion of their sensitive beaks will be removed by a laser,”  after which hey are placed 100 per crowded box and shipped across the country.”

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Banned in France & Germany

Germany banned chick culling,  effective on January 1,  2022,  in favor of use of technologies which detect chick gender early in the embryonic process.

A similar ban is to take effect in France on January 1,  2023.

The U.S. egg industry has meanwhile made little progress against live maceration in “chick sexing.”

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Castration without anesthetic

Two years later,  on June 29,  2011,  Mercy for Animals again shocked television and web viewers with undercover video obtained from inside an Iowa Select Farms pig farrowing barn in Kamrar,  Iowa.

Described Smith of that footage,  “Abuses include workers cutting off piglets’ tails with dull clippers and castrating them by ripping out their testes with their bare hands  all without any anesthesia or follow up medical care;  pigs suffering from large,  open, pus-filled wounds and pressure sores;  mother pigs  physically taxed from constant birthing suffering from distended, inflamed,  bleeding,  and usually fatal uterine prolapses;  thousands of pregnant pigs confined in metal crates so small that they could not turn around,  fully extend their legs,  or even lie down comfortably;  and management training workers to throw piglets across the room,  comparing it to a  roller coaster ride.”

A second animal advocacy organization,  Compassion Over Killing,  in February 2012 distributed a similar exposé of the treatment of pigs at Hawkeye Farms,  in Leland,  Iowa.

(Mercy for Animals photo)

Iowa legislature tried to circumvent precedent

On March 2, 2012,  then-Iowa governor Terry Brandstad signed into law the first of the state “ag gags.”

This law stipulated that “A person is guilty of agricultural production facility fraud if the person willfully obtains access to an agricultural production facility by false pretenses [or] makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility with an intent to commit an act not authorized by the owner.”

The 2012 Iowa bill sought to circumvent multiple precedents established between 1992 and 2002 in cases involving use of undercover exposés by the ABC television magazine show Prime Time Live. 

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Follow the money!

Brandstad,  revealed the Des Moines Register,   “and several other legislators largely supporting the bill,  received substantial contributions from influential agriculture groups,  including the Iowa Pork Producers Association.

“The National Institute on Money in State Politics,”  the Des Moines Register reported,  “found that the agriculture industry provided nearly 10% of Governor Branstad’s $8.9 million in campaign funding,  while another leading supporter of the bill,  Senator Joe Seng of Davenport, received over 25% of his campaign money from agricultural interests.

“Founders of Iowa Beef Products topped the donor list,  contributing $152,000 to Governor Brandstad’s campaign.  Co-founders of Iowa Select Farms,  the target of the 2011 Mercy For Animals investigation,  were also among the top donors,  contributing $50,000 to Brandstad.”

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Video caught Iowa Farm Bureau geek in the act

Ironically,  a senior employee of the Iowa Farm Bureau was caught in the first exposé of misconduct at what might be termed an agricultural facility following passage of the 2012 Iowa “ag gag.”

Reported the Des Moines Register on March 28, 2012,  “A Farm Bureau vice president told authorities that one of the agency’s employees had been caught on video urinating on the office chairs of four female co-workers.  The suspect,  a 59-year-old man from Des Moines,  was fired.

“The man had worked in the information technology department and had access to all computers and the employee database,  Farm Bureau officials told the police.

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Got the chair

“Police documents said the man would look up employee photos in the database. He would pick out the attractive females and then on off-hours,  he would come into work,  go to their desks,  and urinate on their chairs.”

This apparently began in October 2011,  but the alleged culprit was not caught,  the Des Moines Register explained,  until after surveillance cameras were installed while the “ag gag” was before the legislature.

Apparently Mercy for Animals and Compassion Over Killing had shown the Iowa Farm Bureau the way.

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“Money don’t talk,  it swears”

So why,  having discovered the utility of video surveillance in enforcing appropriate behavior,  does the Iowa Farm Bureau not accept longtime agribusiness animal handling consultant Temple Grandin’s recommendation of more than 30 years that all animal handling facilities should be kept under continuous video observation,  and instead continue to join with agribusiness in pushing for passage of “ag gag” laws?

Because,  as Bob Dylan from the neighboring state of Minnesota observed back in 1965,  “Money don’t talk;  it swears.”

Dylan resolved he “ain’t going to work on Maggie’s farm no more,”  also in 1965,  but despite lack of Dylan’s help,  factory farms have only grown enormously bigger since then.

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A lot of manure

Agribusiness in Iowa alone now claims a direct economic output of $88.3 billion,  creating more than 315,000 jobs,  contributing $17.57 billion in wages per year,  even if most of the workers are paid substantially less than the crude average of about $55,800.

In terms of animal lives,  that translates into annual production of more pigs and chickens per year than any other state.  More than 19 million pigs and 54 million egg-laying hens are in confinement in Iowa barns at any given moment.

(Beth & Merritt Clifton)

Aware by now that “ag gag” laws will almost inevitably fail before the courts,  Iowa politicians keep passing them because agribusiness keeps demanding them,  rather than clean up their act reeking of pig and chicken excrement,  and Iowa voters keep electing and re-electing candidates who promise to protect their jobs,  no matter how miserable,  stinking,  and cruel the work.

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