[Update: The United States Court of Appeals for the Fourth Circuit ruled on June 5, 2018 that the federal lawsuit challenging the constitutionality of the North Carolina anti-whistleblower law can move forward, reversing the decision of the federal district court.]

In 2015, an animal rights activist working at a poultry farm in Rockingham County, North Carolina, used a hidden video camera to capture a 22-year-old poultry worker kicking, throwing, and stomping on chickens. When Mercy For Animals, the animal rights group behind the covert investigation, released the tape, poultry worker Danny Cajija Miranda was arrested and charged with four counts of animal cruelty.

Animal rights groups have long relied on undercover investigations to expose abuse on factory farms and provide the public with a glimpse inside the private facilities that produce the majority of the meat Americans put on their tables.

Over the years, the investigations have turned up evidence of animal mistreatment as well as crowded, dirty facilities. Video footage and other documentation has led to animal cruelty charges, slaughterhouse shut-downs, lawsuits, meat recalls, and animal rescues. They have also driven some eaters to turn away from factory-farmed meat in favor of more humane and environmentally friendly options.

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Rather than working to encourage reform on farms, however, several states have instead enacted laws that forbid the efforts to document the problem. Known by many opponents as “ag-gag,” “anti-sunshine,” or “whistleblower suppression” laws—and by many supporters as “farm protection” laws—these laws prohibit farm or slaughterhouse employees from filming or taking photographs at their workplaces without their employer’s consent.

On January 1, 2016, mere months after Miranda’s arrest, North Carolina became the eighth state to enact its own version of an anti-whistleblower law. House Bill 405, the Property Protection Act, which survived former Governor Pat McCrory’s veto, is much broader than other ag-gag laws that came before it. It gives all business owners the right to sue employees who enter a non-public area of their workplace and remove records or data, record images or sound, or place an unattended camera—and levy exemplary damages of $5,000 per day they violate the law.

North Carolina ranks second in its production of hogs (after Iowa) and fourth in its production of broiler chickens, making the battle between Big Ag and its lobbyists and advocates for animal, environmental, and human welfare particularly contentious there. Unfortunately for advocates, the factory farm contingent has been prevailing on many fronts for a number of years.

But there is hope, some believe: A coalition of like-minded advocacy groups has turned to the federal court system in an effort to reverse North Carolina’s anti-sunshine law. If the groups prevail, which their representatives feel optimistic about, the ruling could set a precedent that damages Big Ag’s future efforts to avoid public scrutiny.

Cristina Stella, staff attorney for the Center for Food Safety, said knowing what happens on factory farms is vital both for animal welfare and human health. “Consumers have a right to know how their food is produced in order to make informed decisions about what they are consuming,” she said. “When animals are treated inhumanely, it often gives rise to contamination that affects consumers down the line.”

North Carolina’s Ag-Gag Peculiarities

After failing twice to pass ag-gag laws targeting only factory farms, North Carolina lawmakers decided to take a more general approach. In June 2015, they passed a law that also applied to nursing homes, hospitals, day-care facilities, schools, veterans’ facilities, puppy mills, and animal research labs, among other places. Because it affects their constituents, the American Association of Retired Persons (AARP) and Wounded Warrior Project have spoken out against it, in addition to the animal rights and food safety groups normally on the record.

“Anyone who has a parent in eldercare or a child in daycare, and anyone who thinks corporations aren’t always 100 percent ethical in all their dealings, should be concerned about a law that chills to such an extreme degree their right to know what’s going on,” said attorney Michael McFadden, policy and program director for the advocacy group Farm Forward.

In addition to being much wider-reaching, the North Carolina law differs from other states’ in a couple of key ways. First, it makes undercover recording a civil rather than criminal offense, making it harder to sue over in court. Additionally, it assigns extremely high penalties to those who break the law. With its clause imposing $5,000 per day in exemplary damages, the law could impose half a million dollars in fines for a three-month investigation by an advocacy group, McFadden said. “It really creates a strong chilling effect.”

So far, the approach has worked, said Public Justice attorney David Muraskin, the lead attorney in the lawsuit. Muraskin said he does not know of any undercover investigations in North Carolina since the law went into effect last January. “The plaintiffs do [normally] conduct undercover investigations and are specifically not doing them in North Carolina because of the law,” he said.

The Latest Development in an Ongoing Saga

The first anti-whistleblower laws hit the books in Montana, North Dakota, and Kansas in the early 1990s. Industrial hog farming had begun to spread during that period, and to prevent animal rights activists from destructive protest activities, the laws prohibited individuals from trespassing onto the farms and damaging property. They also contained provisions that criminalized unauthorized recording.

The recent batch of ag-gag bills, which focused more squarely on banning recording, swept state legislatures beginning in 2011. Many believe the conservative think tank American Legislative Exchange Council (ALEC), funded in part by the Koch brothers, drafted and pushed the legislation.

Though the bills were introduced in about 25 states, they passed into law in only 10 and remain in place in nine: Arkansas, Iowa, Kansas, Montana, Missouri, North Carolina, North Dakota, Utah, and Wyoming. [Update: In July 2017, a federal judge ruled that Utah’s ag-gag bill is unconstitutional.]

Several have faced legal challenges: In Utah, Wyoming, and Idaho, coalitions of animal- and consumer-welfare groups sued over the laws in federal court. In Idaho, the coalition won, and in 2015, a federal district court struck down the law as unconstitutional—a huge victory for coalition members; in Utah, the case is still pending; and in Wyoming, the coalition lost and is now appealing.

As ag-gag laws have met resistance in both state legislatures and the court system, bills subsequently introduced in other states have been designed to be less susceptible to the types of challenges that have proven effective. Each new bill is “more crafty” than the last, McFadden said.

Although North Carolina’s law managed to pass, it faces a legal challenge. In February 2016, a coalition of groups—including CFS, Farm Forward, People for the Ethical Treatment of Animals (PETA), and the Animal Legal Defense Fund (ALDF)—sued in federal court, stating that it violates citizens’ rights to free speech, a free press, and to petition the government, and that it also violates the Equal Protection Clause of the Constitution.

The state motioned to dismiss the case on procedural grounds, arguing the plaintiffs could not demonstrate the law injured them. But the plaintiffs submitted an appeal on May 23rd and feel hopeful they will win, in part because of their victory in Idaho.

The anti-sunshine laws in Idaho and North Carolina are similar, said Muraskin of Public Justice. “But in many ways, the North Carolina notion is much scarier, because in an effort to hide their objectives, they’ve made it so encompassing that it really prevents any kind of whistleblowing about federal, state, or private industry,” Muraskin said.

The lawsuit in North Carolina, he continued, “is our chance to show [that legislators’ and lobbyists’] attempt to disguise what they’re doing doesn’t work.”

A History of Catering to Big Ag

It’s not possible to delineate exactly how much money special-interest groups direct to legislators in hopes of passing certain bills, said Chris Holbein, public policy director for the Humane Society’s farm animal protection campaign. “But we do know that in the year preceding the North Carolina ag-gag bill, the North Carolina Farm Bureau, the Chamber of Commerce, and the Poultry Federation shelled out more than $300,000 to candidates,” he said.

The Chamber of Commerce views it as an essential measure to boost the competitiveness of the state’s economy and protect business owners from those who might seek to damage their property—“be it patient records, financial information, consumer data, merchandise, patents, or intellectual property.”

“Prior to this law, North Carolina’s weak property protection laws put businesses, not to mention the privacy of their customers, at serious risk of espionage, organized retail theft, and internal data breaches,” the Chamber said in a statement released in May.

Like other animal-welfare advocates, Holbein sees the law, at its heart, as about protecting factory farms. “When you show people the truth about how the vast majority of animals raised for meat and eggs and dairy are routinely abused, they are shocked and want reforms made,” he said. “That’s why these producers and lobbyists are going to such great lengths to keep the public in the dark.”

In North Carolina, Big Ag and its lobbyists increasingly promote their own interests over those of the people living near concentrated animal operations—many of whom are the state’s most marginalized residents, said Muraskin of Public Justice. And it holds incredible sway over legislators.

“North Carolina as a state has a history of catering to industry in a way that is particularly perverse,” he said, noting the complaint filed in 2014 by the U.S. Environmental Protection Agency (EPA) alleging that the state discriminates against communities of color in its regulation of hog waste disposal permits, as well as the passage last month of a law that limits the compensation available to plaintiffs in lawsuits against factory farms, which are primarily located in low-income, minority areas.

“You have a state legislature that is out of control, that is entirely in bed with industry and does not care whether it affects its constituents,” Muraskin said. “They are willing to use their power to silence and directly harm the most at-risk parts of the North Carolina population.”

The Fight for Transparency

In 2012, North Carolina poultry farmer Craig Watts, who raised chickens for Perdue, saw a television commercial for the chicken company featuring owner Jim Perdue talking about “always doing the right thing” and visiting a clean chicken house in which the birds had plenty of room to move around.

“I thought, ‘that’s about as far from the truth as you can get,’” said Watts, who had worked for Perdue for almost two decades and raised about 720,000 birds per year on his farm near the South Carolina border. According to his contract with Perdue, Watts was not allowed to give the birds extra space or fresh air, and he was having trouble getting the company to come out to his farm and treat his sick flock.

In an effort to increase the industry’s transparency, Watts opened the doors to the animal welfare organization Compassion in World Farming in the summer of 2014, allowing them to film freely. (After the film went public, Perdue discredited Watts as a rogue farmer that didn’t represent the company and began monitoring his farm more closely; Watts terminated his contract with Perdue in January 2016.)

Watts has strong opinions about North Carolina’s anti-sunshine law: When the state put laws in place to protect the industry from external scrutiny, “that’s almost admitting they’re ashamed of what they’re doing,” he said. “You can’t allow an industry, specifically the animal agriculture industry, to self-regulate. That’s like grading your own test paper.”

Muraskin said it’s hard to predict when the courts will reach a final opinion on the appeal: the coalition will file its brief over the summer, the briefing period will end around October, and the judges will argue and reach a decision at some point after that.

But he does not believe the state, in the end, will be able to suppress journalism, exposés, and activists’ documentation. “How much of a risk are those groups going to have to take to show that the states shouldn’t be [prohibiting whistleblowing]?” Muraskin asked. In North Carolina, he continued, “that’s what this stands for—the need for the courts to intervene so people don’t have to put themselves in harm’s way to show they have the right to do what the Constitution clearly allows them to do.”

Top photo courtesy of Farm Sanctuary.