Colorado Senate Bill 42 would require reporting of animal abuse within 48 hours. Some, including the bill’s sponsor, Sen. Jerry Sonnenberg, claim that the bill would benefit animals.

In reality, nothing could be further from the truth. SB 42 is not about reducing the abandonment, mistreatment, or neglect of animals. Rather, the bill is a poorly disguised ploy to silence whistleblowers investigating animal cruelty at factory farms and other agricultural facilities. If passed, it will insulate questionable agricultural practices from scrutiny and raise serious constitutional free speech concerns.

SB 42 is more subtle than other so-called “ag-gag” bills. Some such bills directly criminalize conduct that documents farm animal abuse. For example, the Idaho ag- gag law enacted last year criminalizes all recording at agricultural facilities, prohibiting a longstanding American tradition of whistleblowing pioneered by the likes of Upton Sinclair. Yet by requiring undercover investigators to reveal themselves within 48 hours of witnessing animal cruelty, Colorado’s SB 42 reveals an identical intent and effect: to allow agricultural facilities to punish those who criticize their practices.

Colorado is not the first state where industry proponents have introduced a bill designed to silence critics under the guise of protecting animals. Indeed, the industry’s most vocal proponent of ag-gag bills, the Animal Agriculture Alliance, has declared its intent to make such “quick-reporting” bills the centerpiece of its legislative agenda. So far, the Missouri legislature has been the only one to fall for this deception, while lawmakers in six other states have seen through the smokescreen and defeated similar measures. In fact, Tennessee’s attorney general issued an opinion stating that such a law would be unconstitutional.

There is no evidence suggesting that pets or other animals have been harmed by a failure to promptly report potential abuse. But in the past 14 months, two high-profile investigations at Colorado agricultural facilities have greatly embarrassed the plant operators responsible for allowing such extreme farm animal abuse. One investigation revealed harsh mistreatment and mutilation of mother pigs. The other documented newly born calves being “thrown, kicked around, and dragged by their ears, tails and legs.”

Rather than clean up their practices to protect public health and animal welfare, the powerful agricultural lobby apparently prefers to shoot the messenger. Under SB 42, any cruelty discovered at their facilities can be blamed solely on the poor, low-wage workers who are caught on camera — workers who are quickly scapegoated, fired and replaced with others who will continue the same cruel and illegal conduct often directed by their supervisors. That is exactly why SB 42’s reporting requirements can be discharged simply by notifying an abused farm animal’s owner, and why it imposes no obligation whatsoever on ag facility owners who witness their own employees abusing animals.

Passing SB 42 would make Colorado complicit in covering up factory farm abuse. It also would open up the state to costly litigation. Other ag-gag laws are currently being constitutionally challenged in federal courts, and if the plaintiff wins, the state — and therefore the taxpayers — will cover the litigation costs.

We hope our legislators won’t be fooled by this wolf in sheep’s clothing. SB 42 is not about preventing cruelty. It’s about preventing scrutiny. The bill is bad for animals, bad for agriculture, and bad for Colorado.

Justin Marceau and Nancy Leong are associate professors at the Sturm College of Law at the University of Denver. Also contributing to this essay were professors Alan Chen and Laura Rovner, associate professor Rebecca Aviel, and assistant professors Justin Pidot and Ian Farrell.

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