Enhanced Trespass or "Ag Gag" Litigation Updates

I’ve written about Indiana’s enhanced trespass statute before. Activist groups continue to challenge what they call “ag gag” laws around the country, alleging the laws violate the First Amendment or the Equal Protection clause. This post provides a quick update on some of these lawsuits.

The Indiana law applies a heightened safety standard to agricultural operations, just like we apply to dwellings. The law also created various damage thresholds that can increase the severity of the crime and a new way to mark property (purple paint). I’m not aware of any lawsuits that have challenged the Indiana trespass law (yet).

In North Carolina, the legislature passed the Property Protection Act in 2015. The Act allows courts to assess civil penalties on employees who took videos or photographs of a business’s non-public areas to document alleged wrongdoing but passed those videos or pictures on to anyone but law enforcement or or the employer. In other words, taking an undercover video of a private farm and posting that video online for clicks instead of reporting the alleged problems to someone who could do something about the alleged problem. PETA and others filed suit, claiming the law was unconstitutional. In June 2020, a federal district court in North Carolina issued a 73-page ruling overturning the law for violating the First Amendment. The state appealed to the Fourth Circuit Court of Appeals, which held oral argument in January 2021.

Kansas has one of the oldest laws intended to protect farms. In 1990, its legislature passed the Farm Animal and Field Crop and Research Facilities Protection Act, which made it a crime to enter onto property to take recordings without the owner’s consent. Consent induced by fraud is considered invalid. On January 22, 2020, a federal district court found the statute violated the First Amendment because the law attempted to regulate speech. The court explained the statute was both content- and viewpoint-discriminatory. The state has appealed the case to the Tenth Circuit Court of Appeals, which held oral argument in January 2021.

Arkansas passed a new law creating a civil cause of action for unauthorized access to property in 2017. The Animal Legal Defense Fund and others filed suit to challenge the law, alleging that the law just created a way for farmers to sue someone who intrudes on nonpublic areas of property and takes photos or steals electronic data. Again, the activists claimed this statute violates the First Amendment and the Equal Protection clause of the U.S. Constitution. The Arkansas federal district court dismissed the lawsuit, holding it did not allege any real injury in fact, and instead was merely speculative. The ALDF appealed to the Eighth Circuit Court of Appeals, which held oral argument on February 25, 2021.

In Iowa in April 2021, a protester connected with Direct Action Everywhere (DxE) was charged under a 2020 state law called the Food Operation Trespass statute. The law makes trespassing at a food operation facilities an aggravated misdemeanor that carries up to two years in prison and a $8,540 fine (compared to simple trespass, which carries up to 30 days in prison and a $855 fine). He claimed he was at the farm filming video for social media and trying to check on the animals, but never went into any barns.

In Canada, similar laws are being passed by legislative bodies (and challenged by activist groups). Ontario enacted Bill 156, which creates “animal protection zones” around livestock facilities and prohibits persons from interfering with animals and vehicle traffic in those zones. Bill 156 is currently under legal challenge. Alberta has a similar law on the books, while Manitoba and Quebec are considering other protective bills.

In other words, there is no shortage of litigation surrounding enhanced trespass statutes intended to protect animal livestock. I look forward to discussing these issues at the 2021 Animal Agricultural Alliance summit in May. More info here.