Communication Currents

Putting a Muzzle on the Public

October 1, 2014
Freedom of Expression

The recent development within corporate agribusiness to stultify public discussion and debate concerning the contentiousness of conventional practices for industrial meat processing is troublesome. Freedom of speech and First Amendment issues happen in everyday life, not just at the Supreme Court level. Matters that engage the principles, practices, and tensions of free speech happening at different places in our society need to be documented and analyzed.

The phenomenon that has come to be known as "ag gag" involves a series of cases in which industrial agriculture businesses, lobbyists, and sympathetic elected officials attempt to prevent concerned stakeholders from obtaining, distributing, or publicizing information concerning ethically or legally dubious policies and practices. Many political and cultural strategies employ communication.

Since 1990, six states have adopted ag gag laws. Three of these came in 1990 and 1991, while the remaining laws were introduced and passed in 2012. Eleven other U.S. states introduced bills between 2011 and 2013 but did not pass ag gag laws. A remarkable feature of these legislative happenings is that many of these bills bear remarkable similarity in their employment of language. Furthermore, the language in the first wave of ag gag laws in the 1990s indicates a significantly different focus than the more recent wave of ag gag laws. In fact, the 14 bills introduced in the past two years share language features the group of bills from decades earlier does not.

Kansas passed the first ag gag law in the United States in 1990. North Dakota and Montana followed suit in 1991. In these three precedent-setting ag gag laws, the focus was to protect animal, field crop, and research facilities. All three of these laws explicitly state the need for protecting the relevant facility against intention to damage property.

Comparing and contrasting the language in these laws with the more recent wave of ag gag laws is instructive, especially given that the second wave of big ag gag has been heavily informed by the American Legislative Exchange Council (ALEC), a conservative Texas legislative-reform think tank. Unveiled in 2004, ALEC’s model legislation was named the Animal and Ecological Terrorism Act and helped usher in Patriot Act era rhetoric of terrorism targeting domestic environmental and animal rights organizations and activists. Since then, it has been adapted and modified to reduce resistance and increase the chances of success for big ag gag in several statehouses. Key words in ALEC’s provisional language such as “communications,” “equipment,” “publicize,” and “promote” reveal the express focus on communications within the model legislation. 

More than one dozen copycat bills derived from ALEC’s model legislation were introduced between 2011 and 2013. The three state legislatures that passed the bills and whose governors signed them into law were Iowa, Missouri, and Utah. The most significant differences between the 1990s legislation and the more recent bills and laws can be summarized as: (1) the dramatic increase in frequency of ag gag sponsored bills in the past year compared with the previous 20 years; (2) prior to ALEC’s 2004 model legislation, violations were not defined as “animal and ecological terrorism”; (3) a focus on intention of property damage for the 1990s legislation and public communications for the 2012–2013 bills; and (4) the quick reporting provision was not material for the 1990s legislation.  

First, the sheer numbers of ag gag bills introduced in statehouses in the past two years tell a story of ideological manipulation. Most, if not all, of the actors involved in the various stages of this production have or have had a direct link to ALEC. For instance, the diluted ag gag bill that passed in Missouri was sponsored by Sen. Mike Parson, who has direct ties to ALEC. In Utah, according to the official minutes of the House, Rep. Bill Wright was the first to voice support for the bill and moved to pass it. He maintained a former affiliation with ALEC.While in Iowa, Gov. Terry Branstad, who signed House File 589—Iowa’s ag gag law—was a founding member of ALEC.

Second, the language of “animal and ecological terrorism,” introduced by ALEC’s model legislation in 2004, has smuggled 9/11 era rhetoric of terrorism into domestic policymaking. The consequences of this rhetorical move are severe. Public stakeholders such as investigative journalists or environmental activists fighting for the public’s right to know or to preserve, animal rights are not fundamentalists flying planes into buildings or killing themselves. Citizens and journalists documenting abuses are not terrorists. Photography and video recording are not terrorism.

Third, perhaps the most troublesome dimension to the contemporary controversy of big ag gag, is the strategic attempt by the agribusiness industrial complex to prevent the public from having awareness of widespread animal rights infractions. Awareness is the first step in any systematic persuasion model to trigger behavior change. While the focus for the earlier 1990s ag gag legislation was primarily property damage, the focus for the second wave between 2011 and 2013 has been communications. This focus belies corporate advertising and public relations as “the dominant discourses of our time.” 

Preemption rhetoric has been a dominant tactic within recent conservative presidential administrations’ policy endeavors. For political administrations, a policy of preemption legitimizes a reading of the future to anticipate imagined or real threats and justifies the use of military force without material evidence of said threat. In the corporate context, the ability to foreclose on potential public awareness of questionable or illegal operating procedures has obvious benefits for a corporation’s policies, practices, bottom line, and image.

Fourth, the quick reporting provision did not exist in the 1990s ag gag legislation, but it is a significant feature of the 2011–2013 wave of ag gag bills. The quick reporting provision is another example of how this new ag gag ideological warfare is fraught with problems for social practices of democracy. The quick reporting provision is problematic in two ways. The first has to do with the fact that this requirement would make it look as though the practice of animal cruelty, low environmental standards, public safety, and health violations are isolated incidents when in fact they are emblematic of standard practice within the industry. The second problem with the quick reporting provision is that, by and large, it is unconstitutional. First Amendment protections for newsgathering prohibit the imposition of this kind of limitation.

In spite of these numerous and significant manipulative message strategies, the controversy continues. So far in 2014, an ag gag bill has been turned down in New Hampshire and passed in Idaho, and a federal judge has overturned an attempted dismissal challenging the constitutionality of Utah’s ag gag law. The ag gag controversy reflects high stakes in the ongoing negotiation of the meaning of democratic values and practices at the intersection of public and private early in the 21st century. As democratic citizens, we have the right to certain freedoms. It is also our responsibility to exercise these freedoms, including staying vigilant, becoming informed, and engaging the political process through creative and strategic communication.

About the author (s)

Joshua J. Frye

State University of New York

Associate Professor