Iowa has approved an “ag-gag” law, making it a crime to lie on a job application at an agricultural operation and gain entrance with the intent to commit an act not authorized by the owner.
The law passed the state Senate 40-10 and the House 69-28; Gov. Terry Branstad signed it into law. Meanwhile, legislatures in several other states — Illinois, Indiana, Minnesota, Missouri, Nebraska and New York — have considered, or are still considering, such laws. In Utah, a similar law is headed to the governor’s desk.
According to the Iowa law, a first offense would be considered a serious misdemeanor, carrying a fine of up to $1,500 and the possibility of imprisonment for up to a year. A second conviction would be classified as an aggravated misdemeanor, which can result in a fine of $5,000 and up to two years in prison.
An earlier version of the Iowa law went even further, including language that would have made it illegal to take video recordings or photographs surreptitiously, without the owner’s permission. That language was removed over concerns it could violate free speech protections guaranteed by the Constitution.
But constitutional scholars have expressed reservations about the current version as well. One concern is that the law might be an example of “prior restraint”: a restriction on speech before it has even been produced. Courts have considered prior restraint to be one of the broadest categories of free speech restriction, so any law containing the slightest suggestion of it is automatically viewed with skepticism. According to the U.S. Supreme Court’s 1976 opinion in Nebraska Press Association v. Stuart, prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.”
Legal scholars say there’s another way the Iowa law could prove to be problematic when it faces a court challenge, which seems almost inevitable: There is a presumption that falsehoods also are protected under the First Amendment. In other words, the freedom of speech includes the freedom to lie. That has been the general legal presumption. The Supreme Court is currently deciding a case that explores the boundaries of that idea in U.S. v. Alvarez, a case that hinges on whether lies regarding military honors are protected speech.
Finally, legal experts also note that courts generally have supported the rights of media outlets and whistleblowers to go undercover to expose misconduct. It likely won’t take long for those protections to run headlong into this law — and end up in a courtroom. And then there is, of course, the court of public opinion, where the law is already being assessed. Many consumers are opining that it creates the impression that agricultural producers might have something to hide, and it appears at the very time when consumers are actively seeking more information about their food. The agriculture industry has lamented the fact that consumers don’t understand what they do because so few of them have any experience with ag. More transparency, not less, could be one way to help them learn about how their food was made.