A story out of Utah this week neatly showcased the rising concerns among civil liberties and press freedom groups around so-called "ag-gag" laws, which, in various ways, make it illegal to document animal abuse on factory farms and other agricultural businesses. In Utah, authorities charged a local woman with taking photographs of animal cruelty from a public vantage point, and then quickly dropped the charges after significant public outcry.
Ag-gag laws have long been highly unpopular among the animal rights and food safety movements. But, the Utah case shows the extent to which these laws are flagrant violations of the First Amendment—and how much they have in common with other recent attempts to limit our constitutional right to photograph and record (while in public). While the animal welfare aspects to the problem are central, these constitutional considerations should not receive short shrift.
There are three basic flavors of ag-gag laws, and many states have introduced measures that include more than one. The first type makes it illegal to record an agricultural operation without the consent of its owner or operator. The second makes it a crime to lie on your resume to gain access to an agricultural facility. And the third requires an individual that suspects she has recorded a depiction of animal cruelty to turn the recording over to the cops. This last flavor is particularly insidious, as it has been characterized by supporters as an anti-animal cruelty measure (but actually seeks to make long-term investigations impossible).
Taken together, these measures—which are law in six states, and have been introduced in 11 others—threaten to virtually eliminate undercover investigations into not just animal abuse, but labor practices, food safety, environmental pollution, and numerous other consumer and public welfare concerns. Worse, many ag-gag laws and bills are quite loose in their definition of agricultural operations, meaning they would cover not only factory farms and slaughterhouses, but even supermarkets and restaurants.
Aside from the public policy concerns, ag-gag laws raise major constitutional issues, some of which may not be immediately obvious.
First, both the unauthorized recording and "resume fraud" provisions punish speech without proof of harm. There are very limited categories of speech—think perjury, price-fixing, or threatening to punch someone in the face—that are subject to lesser First Amendment protection because they are inherently harmful. But ag-gag laws cover speech without evidence of harm, making it illegal to record video without consent, or to lie on your resume to get that video, even if you never do anything with it.
Second, and relatedly, the employment "fraud" statutes are particularly bad because they are not actually fraud statutes. Fraud is one of those categories of speech that is not subject to full First Amendment protection, but to prove fraud you have to show injury resulting from a material misrepresentation. Here, not only do the laws not require proof of injury, the injury that could result isn't actually a result of the lie on the resume.
Rather, when you lie on your resume to get a job at a factory farm and take a video of the abuse of downer cows, it's the abuse of downer cows that results in fewer people doing business with that company, not the recording of the abuse. I realize that point isn't particularly intuitive, but it's true. The Supreme Court recently cited a similar rationale in striking down a law making it illegal to lie about having the Medal of Honor without proof of harm.
There's a lot more to say about ag-gag laws, and we'll be saying it. For now, please urge Governor Haslam of Tennessee to veto that state's bill. I've also taken the liberty of listing all of the enacted and pending ag-gag measures around the country below, as well as noting what type they are. "UR" is an unauthorized recording provision, "EF" is employment fraud, and "MR" is mandatory reporting.
Laws in force:
- Kansas (UR)
- Montana (UR)
- North Dakota (UR)
- Utah (UR, EF)
- Iowa (UR, EF)
- Missouri (MR)
Legislation pending (some of these measures have since died, but could be reintroduced):
- Arkansas (UR, EF)
- California (MR)
- Indiana (UR, EF, and enhanced penalties for certain property crimes)
- Nebraska (MR, EF)
- New Hampshire (MR)
- New Mexico (UR, EF)
- North Carolina (EF, MR)
- Pennsylvania (UR, EF)
- Tennessee (MR)
- Vermont (EF)
- Wyoming (UR, EF, MR)
Learn more about "ag-gag" laws and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.