THE BLOG
08/07/2015 05:10 pm ET Updated Aug 07, 2016

Moving Beyond the "Ag" In "Ag-Gag" -- the Next Wave of Anti-Whistleblower Legislation?

By Molly Knobler and Gordon Schnell

An image is worth a thousand words. Cliché but true. One particular image of a young alligator, suspended by its tail, bleeding out, is worth Jane Birkin telling Hermès she no longer wants her name on its luxury bags. Prompted by a whistleblower tip, People for the Ethical Treatment of Animals (PETA) conducted undercover investigation at Hermès' crocodile skin supplier, Lone Star Alligator Farms, and released of a compelling video showing the farm's brutal killing tactics.

It was similar imagery from an undercover operation by the Humane Society that exposed unspeakable cruelty by the Hallmark Meat Packing Company towards cows headed for slaughter. It led to the largest meat recall in US history and a half a billion dollar False Claims Act judgment for selling noncompliant ground beef under the national school lunch program.

These are just two prominent examples of the many whistleblower successes that have helped expose just how bad "Big Agriculture" can be in abusing our animals and endangering our food supply. They are also the types of stories that spawned the development of so-called "Ag-Gag" legislation to stop this whistleblower activity. These are the laws which criminalize legitimate whistleblowing by barring any kind of secret recording at an agricultural facility.

Under the mighty Ag-Gag umbrella, what goes on inside the factory farm stays in the factory farm. No matter the abuse or misconduct. And in some of its more recent incarnations, you actually can be punished for failing to report animal abuse within a 24 to 48-hour window. This added wrinkle is a further assault on legitimate whistleblowing by making it virtually impossible to prepare a compelling case for animal abuse and providing significant additional criminal exposure for even trying.

That is exactly what landed Taylor Radig in jail. Recruited by animal welfare group Compassion Over Killing, Radig collected video evidence of employees at Quanah Cattle Company in Colorado routinely abusing newborn calves. But when she turned it over to the Sherriff's office, Radig was the one arrested on charges of animal cruelty (for supposedly taking too long to report what she found). It was only after a huge public outcry that the charges against her were dropped (as was Colorado's ag-gag bill).

There has been success in other states too in shutting down this anti-whistleblower charge. In fact, just this week a federal judge struck down Idaho's Ag-Gag law as unconstitutional under the free speech and equal protection clauses. But while the story may have ended well for Radig, and while Colorado and now Idaho seem to be on the path to redemption (at least for now), other states appear to be moving in the exact opposite direction. They are trying to expand this once targeted anti-whistleblower crusade well beyond the confines of factory farms and animal welfare to include whistleblowers and misconduct in a much broader sphere of commercial activity.

For two states in particular, that is clearly what they are hoping to accomplish with a new round of legislation that seemingly removes the "ag" from the "ag-gag" model to effect a much more expansive anti-whistleblower sweep. In July, the North Carolina legislature (over the Governor's veto) adopted a law that will allow employers to pursue civil charges against employees who, by "gaining access to the nonpublic areas" of their employer's facilities, take photographs, shoot video, or copy data or documents, and use that information "to breach the person's duty of loyalty to the employer." N.C. Gen. Stat. § 99A-2.

Questions remain on whether this law will override the rights and protections afforded whistleblowers under the False Claims Act. Hopefully not. Either way, the specter of liability the statute poses, including punitive damages of up to $5,000 a day, is likely to weigh heavily on would-be whistleblowers in the state thinking about stepping forward. That was one of the reasons the governor tried to stop it. He was concerned the law would broadly dissuade legitimate whistleblowers. And not just those inside the factory farms. As AARP pointed out in opposing the legislation, it makes those inside "nursing homes, hospitals, group homes, medical practices, charter and private schools, daycare centers, and so forth" vulnerable as well.

Wyoming has embarked on a similarly broad-based whistleblower offensive. The state recently enacted a law that criminalizes the unauthorized collection of "resource data" with the intent of submitting it to the government. Specifically, it criminalizes "enter[ing] onto open land for the purpose of collecting resource data" without an ownership interest in the land or other authorization to access the land. Wyo. Stat. Ann. § 6-3-414. "Open land" is defined ambiguously to apply to private, state, and potentially even federal land. And "resource data" covers any data about "land or land use" including "data regarding agriculture, . . . air, water, soil, conservation, habitat, vegetation or animal species." Pretty much anything to do with human health and safety.

Wyoming lawmakers deny their law is another ag-gag attack, arguing it "has nothing to do with animals or animal cruelty" but rather is aimed at "strengthening private property rights." They may be right. This statute, like the one in North Carolina, has the potential to reach much more than just the animal welfare whistleblower. That is the point. And it is precisely why this new breed of anti-whistleblower legislation should be the cause for such alarm. They may not only lock us out of the factory farm. They may shut the door to uncovering fraud and misconduct wherever they occur.

Few would question that sunlight is the best disinfectant. That is why at the federal level there has been such Congressional support for expanding the rights and protections of whistleblowers. But with this "new and improved" ag-gag campaign, there appears to be a mounting effort by at least some states to keep closing the blinds.