An undercover video taped in 2012 showed Idaho dairy workers beating cows, prompting criminal convictions. Republican state lawmakers responded — by banning undercover videos.
Activists citing the right to free speech want the Idaho law struck down, and a federal judge might rule on the case late this month. The Idaho challenge is part of a fight against statutes, known to their opponents as ag-gag laws, in at least seven states that prohibit going undercover to document conditions on animal farms. This year, lawmakers have proposed new bills limiting documentation of farm conditions in five more states.
Organizations such as Mercy for Animals, which posted the Idaho video of what they identified as a farm that supplies Burger King, said undercover investigations are the only way to expose abuses, in the tradition of Upton Sinclair’s 1906 novel, “The Jungle.”
The industry has a different view. According to the Animal Agriculture Alliance, such videos misrepresent agricultural practices. The AAA says they’re staged by interlopers who get farm jobs under false pretenses, then use an excuse to disappear weeks or months before the videos surface.
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“You have the farmers, producers, industry who are trying to protect themselves,” said David Favre, a law professor at Michigan State University who studies animal issues. “On the other side you have First Amendment people and animal people who are saying, No, we get to talk about the conditions of the animals, and it’s inappropriate for you to interfere with our collection process.”
Luis Bettencourt, then-owner of the farm shown in the video, said the footage shocked him, too. It shows workers hitting cows with sticks, dragging a cow behind a tractor and kicking cows in the face. Bettencourt said he fired the staff involved, installed cameras and tightened background checks. The workers were eventually punished by the courts with fines and probation. Bettencourt didn’t answer phone messages seeking comment.
Idaho so far has received no reports or complaints to prompt enforcement of the law at the state or local level, a spokeswoman for the Idaho Attorney General’s Office said.
That shows the law is effective, said Bob Naerebout, executive director of the Idaho Dairymen’s Association. “Based on the response, the law is working,” Naerebout said. “There’s been no other unauthorized videoing we’ve been aware of.”
Mercy for Animals was irresponsible to single out Burger King and misrepresents the company’s commitment to animal welfare, the fast-food chain said in an emailed statement. The company said it has no position on state laws prohibiting undercover videos.
The Idaho law, drafted by a lawyer for the state’s dairy association, made it a crime to interfere with agricultural production by gaining employment under false pretenses and making audio or video recordings without permission. The law took effect immediately after Gov. Butch Otter signed it on Feb. 28, 2014.
“Terrorism has been used for centuries to destroy the ability to produce food and the confidence in food’s safety,” state Sen. Jim Patrick, R-Twin Falls, who sponsored the bill, said of the legislation at the time. “This is how you combat your enemies.”
Twenty-four states, including California, Colorado and South Dakota, have rejected similar proposals after activists objected, according to the American Society for the Prevention of Cruelty to Animals. The American Farm Bureau Federation has supported bills, and Monsanto, the world’s biggest seed company, said it backed a successful 2012 effort in Iowa.
The Animal Legal Defense Fund and other organizations sued the state of Idaho in federal court in March 2014, claiming the law impinges on freedom of speech. The language was so broad, they argued, that it could criminalize making recordings in restaurants or home kitchens.
“Frankly, we see the expedient nature in which their suit was filed as a compliment to the security this new law grants Idaho agricultural producers,” the Idaho Dairymen’s Association said in a letter on its website. Bob Naerebout, the group’s director, said the law strikes a balance between protecting free speech and private property.
The association asked to intervene in the lawsuit, but the judge, B. Lynn Winmill, appointed by President Bill Clinton, concluded that the state could adequately represent the industry’s interests. He might rule on the plaintiffs’ request for a summary judgment in their favor at a hearing scheduled for April 28.
If the animal activists prevail, Matthew Liebman, one of the ALDF’s lead attorneys, said he expects the state to appeal. After that, the U.S. Supreme Court could be asked to review the case, he said.
“No matter how descriptive my words are, you’ll never fully understand what life is like for these animals until you see a video,” said Amy Meyer, 27, an activist in Salt Lake City. In 2013, she became the first person in the country charged under an ag-gag law after videotaping a slaughterhouse from the side of the road. The charge was later dropped. She and the ALDF are pursuing another constitutional challenge in a Utah federal court.
There are many other places where videotaping is prohibited, such as concerts, museums and movie theaters, said Kay Johnson Smith, president of the Animal Agriculture Alliance in Arlington, Va. The “industry-united” nonprofit says it “helps bridge the communication gap between farm and fork.”
“The reason these laws have been proposed is the use of unauthorized videos and photographs by animal-rights activists ... that exist to stop the use of animals for food have found this is a very effective publicity tool and fundraising tool for them to advance their agenda,” Smith said.
The videos lack context because of how they’re edited, and activists have refused to release raw footage, she said. Some practices that veterinarians consider beneficial might appear cruel to people unfamiliar with the industry, she said. For example, animals are housed indoors to protect them from the elements and are restrained to receive vaccines.
In the Idaho case, a dairy worker complained to his supervisors and alerted authorities while he was still employed, before Mercy for Animals posted the video, according to Vandhana Bala, the group’s general counsel. The organization has turned over raw footage to authorities but hasn’t released it publicly because there would be too many hours of video, she said.
“The fact that multiple individuals were charged and convicted clearly demonstrates the legitimacy of our evidence,” Bala said. But Mercy for Animals won’t do undercover investigations in states where they’ve been outlawed, she said.
Naerebout said he’s confident the Idaho law will hold up. “We feel the law was written properly,” he said. “We’ll wait to see if the courts agree.”
Smith said consumers who want to know more about their food would be better served by visiting farms on organized tours or watching videos on her organization’s website. The meat industry’s safety is a matter of national security to make sure the U.S. isn’t dependent on imports or vulnerable to food-borne attacks, she said.