Legally Brief: Undercover Investigations & Ag Gag Bills

Great news for animals! Tennessee Governor Bill Haslam will veto a controversial ag gag bill that has received national public outcry. The Animal Legal Defense Fund has been alerting the public about ag gag laws from the beginning, with tremendous support from ALDF members who urged Governor Haslam to veto the bill. Last week, Tennessee Attorney General Bob Cooper called the ag gag bill "constitutionally suspect" and charged that it would violate the First Amendment to the U.S. Constitution. ALDF applauds Governor Haslam and Bob Cooper for protecting the public from a law ultimately aimed to silence whistleblowers and protect animal abusers. Ag gag bills like these decimate undercover investigations on factory farms by banning photo and video evidence used to build fully-developed animal cruelty cases. This is why the Animal Legal Defense Fund recently demanded that the Animal Agriculture Alliance (AAA) prove its claims to have evidence of investigative tampering. These bold and unsubstantiated claims mislead the public and unfairly defame the work of investigators.

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Undercover investigations are central to building cases against animal abusers—and those who profit from the exploitation of animals. This week, ABC 7 news exposed its undercover investigation of California restaurants who continue to violate the state ban on the sale and production of force-fed foie gras (diseased duck and goose liver). Animal Legal Defense Fund attorney John Melia sat down with investigative reporter Dan Noyes and the ABC 7 I-team to discuss ALDF's lawsuit against a Napa restaurant for flagrantly violating the state law. ABC's report alludes to the ongoing problems of animal cruelty at Hudson Valley Foie Gras—a foie gras producer involved in ALDF's false advertising lawsuit. The exposé aired May 6^th and reveals the inherent cruelty in the force-feeding process, as backed up by numerous independent avian pathologists.

In other news, the Food and Drug Administration (FDA) finally agreed to address the issue of deceptive egg labeling, and consider the petition filed by ALDF and Compassion over Killing. The petition asks the FDA to mandate the full disclosure of egg production methods—"eggs from caged hens," "cage-free," and "free-range"—so that consumers know what they're buying (or avoiding) and producers can't make premium profits off deceptively cruel foods (an issue first raised in 2006). We're delighted the FDA has decided to pay attention to the growing public demand for transparency.

Keeping Faith in a System That Doesn't Always Work

How many times have young activists, sometimes just out of high school, stopped me and asked "What is the best way to help animals?" I used to tell them: "Go to law school, the way I did, and make the legal system work for animals."

I say that less now.

I've learned the hard way the system only works for animals when judges, prosecutors, and regulators rigorously apply the law. Yes, we need better laws for animals; but there are good laws that can help animals right now—laws that lawyers and law students can find, if they search hard, and can bring before our courts and other officials to change the way animals are treated.

But our officials and even judges are only human, as Matthew Liebman recently pointed out, and are inevitably part of a culture where most animals are for eating or wearing, and little else. And yes, lawyers representing animals' interests are asking officials to apply the law so that sometimes animals' interests come out over what some humans, standing there in court and backed by expensive lawyers, are asking for. Doing that cuts against much in our culture and even our base nature that says "but it's only an animal!"

When that happens it is crucial that officials keep this in mind: Laws that protect animals represent a special political compromise between humans, a limitation on our behavior derived from our democratic process that says: there are some things you cannot do to animals. Animal law is that special compromise, settling what would otherwise be violent disputes between animal abusers and the more brave and compassionate among us that would step in to prevent the animals' abuse. As the Court of Appeals for the District of Columbia said in 1908:

Cruel treatment of helpless animals at once arouses the sympathy and indignation of every person possessed of human instincts,—sympathy for the helpless creature abused, and indignation towards the perpetrator of the act; and in a city, where such treatment would be witnessed by many, legislation like that in question [anticruelty law] is in the interest of peace and order and conduces to the morals and general welfare of the community.

Johnson v. District of Columbia, 30 App. D.C. 520, 522 (D.C. Cir. 1908)

But when our officials refuse to apply the dominant standards in the law that speak directly to how animals are treated, and instead find some way out by focusing on handy doctrines that speak to less pressing values, they are breaking that compromise. They are wearing down the basic structure of our system by eroding confidence that the compromise about how animals ought to be treated will actually be enforced, and they are promoting public indignation and outrage by not applying the law so as to actually stop the illegal cruelty. In short, by not applying the law and instead finding a way out, they are doing exactly what the Johnson court warned against.

And despite lawyers' resistance to being open and honest and critiquing public officials, as I am doing now, it is especially important to do so when it comes to animal rights because these cases involve a burgeoning social movement that is relying upon officials to enforce a compromise between millions of people over a potentially explosive moral issue: if and when the suffering of innocents is justified. For that reason lawyering (and officiating) for animal rights is not like other forms of lawyering, not like representing two businesses disputing a contract where there is little reason for objective moral outrage.

Lawyering for animal rights carries with it a duty to critique the system, to point out where it fails, because animal rights cases put so much more at stake; public peace and order are contingent on the system actually applying the rules—the terms of agreement—that come out of the political compromise because as the Johnson court pointed out cruelty brings, and ought to bring, indignation. Officials who do not apply the rules, who do not enforce the contract, are inviting return to the underlying political dispute much the way courts in the South invited dispute and dissidence by refusing to apply the emerging civil rights laws of that era.

Today I tell fewer young people to go to law school if they want to help animals. Many young activists think I'm an old fool for believing officials will simply, and boldly, apply the law even when it means an animal will triumph. Law students know that animal lawyers, even when there are blatant violations of the law, spend most of their time arguing about why they and their clients have the right to even be in court, why they have legal "standing." They know about the legal doctrines, invented by judges, designed to get cases thrown out of court to minimize the courts' workload.

These students tell me they will find other ways to help animals. They know the horror stories told to them by lawyers who practice animal law—regulators who ignore their own rules, prosecutors who pretend animal cruelty laws don't exist when the abuser is powerful or a profit-making enterprise, and judges who find any excuse under the sun to avoid actually applying the law.

I find it harder to respond to the more cynical students because I have seen the difficulties first-hand: a small-town judge in Pennsylvania that acquitted the locally influential Esbenshade Farms without even trying to explain why, despite video evidence of hens dying of thirst and impaled on broken cage wires; the New York court that dismissed a case against foie gras producers by relying on arguments the plaintiffs never made; the federal judge in Washington, D.C. whose clear animus towards a witness has meant millions of dollars that were donated to help animals instead being sent to an industry that actually abuses them; and a state court judge in California that "equitably abstained" in a cruelty case, citing the burden of hearing a case that involved too many animals and out of deference to federal authorities, even when Congress and those very authorities have encouraged courts not to abstain.

Any judge, prosecutor, or regulator that deals with animal cases should spend some time with the young lawyers that I do, the ones that, despite the horror stories, made the choice to become animal lawyers and to at least try to see justice carried out. They come fresh out of law school, eager and perhaps naïve enough to want to use the law to help animals. They have enough faith in our legal system (which pays these officials' salaries) to get all the way through law school, and to work for a fraction of what they would have earned—simply because they want to make animals' lives better. I think officials would have a harder time ignoring animal law if they saw the faith I see in these young lawyers.

Being around these young lawyers reminds me why I work for animals. Many officials do apply the law, whether it's prosecutors charging Michael Vick, USDA officials fining the notorious Ringling Brothers' Circus, or a court in North Carolina recently ordering the release of Ben the Bear. To see young lawyers reacting to our system—when it works—makes it worth doing this work. They see their hard work to make our political compromise real and effective actually pay off, and not just for them but for everyone relying upon our system, including animals. I hope they keep their faith—at least long enough to become officials themselves, but with the respect for animals that our law, if not our culture, often shows.

Animal Agriculture Is Hiding Information…Again

The Animal Agriculture Alliance (“AAA”) is holding a conference in Arlington, Virginia on May 1st and 2nd called “Activists at the Door: Protecting Animals, Farms, Food & Consumer Confidence.” Judging by the title of the conference, one would think the purpose of the conference is to protect animals, farms, food, and consumer confidence. Why then is the AAA then prescreening all registrants and denying attendance to members of the public willing to pay their $425 registration fee? This is a question I was forced to ask myself when my registration this week was rejected.

I received an email from Emily Metz Meredith, the Communications Director for AAA stating the following:

Dear Ms. Roth,

I have received your registration for the 12th Annual Animal Agriculture Alliance Stakeholders Summit in May; however, your registration has been declined and your credit card has not been charged.

As it clearly states on our registration page, “To ensure that this Summit provides an optimal educational experience for all attendees, your registration is subject to the Animal Agriculture Alliance's final approval,” we reserve the right to deny registration to anyone who we feel will not aid our organization and industry stakeholders in positive, collaborative discourse.

The speakers’ presentations on May 1, 2013 will be streaming live, and information about where to view the live feed will be made available on our website closer to the date of the Summit.
Thank you for your interest.

Emily Metz Meredith
Communications Director
Animal Agriculture Alliance

Ms. Meredith did not give me a reason for declining my registration and rejecting my money. My guess is someone at the AAA is conducting background checks on everyone applying to the conference to ensure that the information provided at the conference does not get into the hands of the public. Why else would an attorney, mom of two, with no criminal record or history of civil disobedience be denied access? Maybe it is because I am on the Board of Directors of the Animal Legal Defense Fund. Not only is the AAA prohibiting law abiding citizens like myself access to the conference, the AAA has also denied press passes to reporters known to critique their practices. Reporter Will Potter, author of Green Is The New Red, was similarly denied access. It would seem that the AAA is going to some length to ensure that people with strong voices on one side of the issue are not in the room for their conferences. That might make sense if the AAA’s agenda is to protect the businesses and profits of the agriculture industry. If they want to protect consumers, food, and animals, as they claim, then sharing information and having an intelligent debate would better serve their interests.

You may say “But she said the presentations will be streamed live! How can they be hiding information?” Well, the AAA supposedly recorded the conference last year and made the presentations available to the public but significant portions of the conference are not available. For example, a presentation on “Communicating Shared Values Across the Food Chain” was scheduled to last an hour during the 2012 conference but the video available to the public is only 22:11 minutes long. Similarly, a panel on “Agriculture’s Voice in Today’s Media” was scheduled for an hour and a half yet the videos available to the public are only 16:30 and 27:08 minutes long. You can check out similar inconsistencies yourself, including entire missing presentations. The 2012 schedule is available here, and the videos of the 2012 conference are available here. Forgive me for not trusting the AAA that the conference presentations will be not be similarly edited this year. 

The Animal Agriculture Alliance is a coalition of individuals and businesses involved in animal agriculture. They claim their members are “interested in helping consumers better understand the role animal agriculture plays in providing a safe, abundant food supply to a hungry world.” I am a consumer. Why am I not allowed to attend the conference to “better understand” animal agriculture? Last year’s AAA conference attendees were urged to “open the barn doors and showcase the importance of modern food production.” How is denying access to the conference “opening the barn doors?”

In reality, the AAA and the animal agriculture industry is doing everything in its power to ensure that we do not see inside the barns (or, more accurately, inside the warehouses) which house almost 10 billion farm animals in the United States yearly.  The animal agriculture industry has pushed 11 states to introduce ag gag bills aimed at criminalizing undercover investigations and silencing individuals who expose cruel, corrupt, and even illegal practices at factory farms and slaughterhouses.  AAA’s Communications Director, Emily Meredith, (the same person who denied my access to the conference) has been debating the ag gag bills in the media stating that the animal agriculture industry is “transparent” and these bills are designed to make information about animal abuse in the agriculture industry public as soon as it occurs. In reality, these bills would prevent undercover investigations resulting in criminal convictions for animal cruelty such as the recent Wyoming convictions of workers at a Tyson Foods supplier and the North Carolina convictions of workers at a Butterball Turkey farm because they would prevent the documentation of systemic abuse which lead to higher penalties.

Rather than focusing on how to prevent cruelty, the animal agriculture industry is focused on how to cover it up. Out of 12 presentations scheduled for the 2013 Animal Agriculture Alliance Conference, not one deals with how to prevent problems like animal cruelty from occurring. Instead, the animal agriculture industry wants to talk about how to prevent the information of animal cruelty from going public and how to manage the ensuing crisis when that information goes public. Why not make all of the animal agriculture industry’s practices transparent and see what the public thinks? Consumers deserve to know how their food is produced and animals deserve to be treated humanely.

The Chilling Effect of Ag Gag, a Roar for Tony, and Lolita Making a Splash at Last!

This Just In…

The Animal Legal Defense Fund had a great week in our fight to protect the lives and advance the interest of animals!

• On April 24, 2013 the National Marine Fisheries Service found that ALDF & PETA have presented a worthy case in our joint petition to win Lolita protections under the Endangered Species Act like the rest of her pod. Our petition for Lolita, who is confined to the smallest orca tank in North America at the Miami Seaquarium, will now move forward.
• On April 25, 2013 the Louisiana Court of Appeal ruled in our favor by upholding a lower court ruling in our battle to free Tony the Tiger from a Louisiana truck stop. Read more about our case. It is a victory that brings Tony one step closer to life at a sanctuary, like he deserves.

Great wins for animals this week. Thanks for your support!

The Bad News

Last week, amidst the tragedy in Boston, the country was keeping a keen eye on two states: California and Tennessee. These states were considering "ag gag" laws that could have a disastrous impact on animals, our environment, our workers, the safety of our food, and the ability of law enforcement to do its job.

What is ag gag? In the simplest terms, ag gag bills aim to hide conditions on factory farms by making it illegal to effectively gather information, photos, and video at these facilities. Proponents push these anti-whistleblower laws forward to avoid exposure and potential prosecution or lawsuits. Make no mistake: these corporate-backed laws prevent the prosecution of criminal animal abuse. Instead, they criminalize people who report animal abuse or public health and safety concerns on factory farms. It's a good deal for corporate factory farms, but a bad deal for everyone else, especially the animals.

Who is behind these ag gag bills? As we discussed in our interview with Will Potter, the American Legislative Exchange Council (ALEC) is a corporate-funded organization that drafts pro-corporate and anti-consumer model bills for legislators- this secretive group is also behind ag gag bills. On the other hand, groups like the Association of Prosecuting Attorneys and the National District Attorneys Association oppose ag gag laws. They know undercover investigations are absolutely crucial to law enforcement in criminal prosecution. Undercover investigations have exposed serious food safety violations and led to the largest beef recall in US history when 143 million pounds of tainted beef was revealed to be poisoning our children's lunches in the National School Lunch Program. This would not have been discovered without horrifying undercover video that publically exposed the abuse of cows at the plant—just what ag gag laws hope to prevent.

Thankfully, California's bill was removed, though it may return soon. California's bill was aimed at destroying the collection of evidence over time that demonstrates a pattern of abuse or generally abusive conditions.

Unfortunately, Tennessee's legislature voted to pass an ag gag bill that would allow agricultural facilities to get away with animal abuse—like the horrifying "soring" of Tennessee horses—which is currently illegal under the U.S. Horse Protection Act. Although corporate lobbyists managed to push the bill through the legislature, the public is becoming increasingly outraged.

Many are blasting Tennessee's bill as unconstitutional and a violation of the Tennessee Shield Law § 24-1-208, a whistleblower protection law. A chorus of public interest groups, from ALDF to the ACLU and groups like the National Press Photographers Association are calling for Tennessee's Governor Haslam to veto the bill. It's truly a question of corporate influence versus public interest. Stay tuned.

These bills "gag" information from reaching the public and plant the seed of terror in those who witness illegal activity—a strategy known legally as "the chilling effect." Factory farms are already protected by criminal trespass and fraud laws. So what do they have to hide?

Please join us to fight ag gag legislation! You can sign the petition—and learn more about these issues—at our site: ProtectYourFood.org

Victory in ALDF's Tony the Tiger Case!

Yesterday the Louisiana Court of Appeal issued its long-awaited opinion in Animal Legal Defense Fund v. State of Louisiana, holding that Michael Sandlin is ineligible for a permit to confine Tony the Tiger in a cage at the Tiger Truck Stop.

Although the court held that ALDF lacked standing to be a plaintiff in the case, it nevertheless confirmed that our clients—Louisiana residents and taxpayers—do have standing to challenge illegal actions by the government, in this case the Louisiana Department of Wildlife and Fisheries.

In ruling on the merits, the court agreed with ALDF’s argument that Michael Sandlin cannot receive a grandfather permit to continue to keep Tony because Sandlin does not meet the legal requirements for such a permit. As the court put it:

The record establishes that on August 15, 2006, Tony was not owned by Michael Sandlin; rather, he was owned by Tiger Truck Stop. Additionally, on August 15, 2006, the ownership and possession of Tony by Tiger Truck Stop and the possession by Michael Sandlin in Iberville Parish was in violation of a local ordinance, and thus, illegal. Although that local ordinance was amended in 2009 retroactive to August 15, 2006, the amendment to the ordinance did not change the fact that on August 15, 2006, neither Tiger Truck Stop nor Michael Sandlin legally possessed or legally owned Tony. Only an individual who legally possessed an exotic cat (such as a tiger) and who could prove legal ownership of that exotic cat is entitled to a permit for that cat. Accordingly, that part of the judgment of the trial court granting a final/permanent injunction against DWF, enjoining it from issuing any new permits to Michael Sandlin and/or Tiger Truck Stop for the tiger ("Tony" microchip #477E201A4C) now located at Tiger Truck Stop in Iberville Parish is affirmed.

The decision marks a significant step towards Tony’s freedom, as the second-highest court in Louisiana has confirmed that the Department erred when it issued Sandlin a permit. Sandlin’s lawyer has said she intends to seek rehearing of the Court of Appeal’s decision, as well as review by the Louisiana Supreme Court. Sandlin also has his own lawsuit to invalidate the state’s big cat ban. But rest assured ALDF will fight every step of the way to make sure Tony ends up in a reputable sanctuary. We still have a long road ahead, but we’ve cleared a major hurdle and have earned this moment of celebration.