By early 2011, there was another run at introducing state-level laws that would expand the definition of "enterprise interference" to include shooting undercover video. It came after Joe C. Swedberg, vice president for legislative affairs at Hormel, invited Minnesota House Majority Whip Rod Hamilton and state Sen. Doug Magnus, chairs of their respective agricultural committees, to jointly deliver the policy lecture at the Minnesota Agri-Growth Council. The council sees its mission as shaping the legislative agenda; Swedberg was then board chairman. Magnus was former chairman of the United Soybean Board; Hamilton had been president of the Minnesota Pork Producers Association and worked in communications for Christensen Family Farms, the third-largest pork producer in the United States. Swedberg and Hamilton had previously served together on Gov. Tim Pawlenty's Livestock Advisory Task Force and a legislative commission on immigration.
Lynn Becker says conditions at MowMar have improved, but he's wary of letting reporters take a look. Photo: Mary Anne Andrei
The talk, according to the Agri-Growth Council's newsletter, drew one of the largest and most varied arrays of attendees in the group's history. Ten weeks later, Hamilton and Magnus introduced identical bills that would make it a crime to "produce a record which reproduces an image or sound" inside an animal facility—or even "possess or distribute" such a recording. Daryn McBeth, the president of the Agri-Growth Council, told the Minneapolis Star Tribune that the law would be "an important deterrent tool in our toolbox" against videos shot by "fraudulently hired employees." The Star Tribune pointed to a case that rocked Minnesota a few months earlier, when workers at the Willmar Poultry Company—the country's largest turkey hatchery, producing 45 million birds a year—were filmed by HSUS undercover activists throwing sick, injured, and surplus birds into grinding machines while still alive.
It was a spotlight on another horrifying but legal practice. No surprise, then, that lobbyists from the poultry industry soon helped the effort to move similar bills onto the legislative agenda in Florida and Iowa, as well as Minnesota. Wilton Simpson, an egg farmer now running for the Florida Senate, pushed the legislation in the Sunshine State. In Iowa—where egg mogul Jack DeCoster was under a federal investigation that eventually found that filthy conditions at his facilities had led to a salmonella outbreak and nationwide egg recall—the Iowa Poultry Association freely admits the role it played in shaping the bill. Introduced by then state Rep. Annette Sweeney, former executive director of the Iowa Angus Association, the bill—supposedly composed around Sweeney's kitchen table—was nearly identical in language to the bill introduced by Hamilton and Magnus in Minnesota, which in turn borrowed from ALEC's model legislation.
Sweeney's bill was overwhelmingly approved by the state House, despite a poll showing that 65 percent of Iowans opposed the measure. It stalled after Iowa Attorney General Tom Miller suggested that the bill as written might infringe on free speech, but a revised version, recrafted with input from Miller, was signed by Gov. Terry Branstad in March 2012. The new law evoked the Food Lion lawsuit—outlawing only employment fraud, not shooting video, and making it a misdemeanor, not a felony, to gain entrance to a farm or slaughterhouse on false pretense. Utah, however, passed a law closer to the original draft, making it misdemeanor "agricultural operation interference" to record video or audio at a farm facility—even if you were a whistleblower from within the company.
Meanwhile, in what some animal rights activists have called an "evolutionary change" in strategy, Missouri and Nebraska lawmakers introduced bills that include provisions for what is termed "quick reporting"—a concept ostensibly intended to protect animals, but that de facto makes it impossible for journalists or activists to build a convincing case of sustained abuse. Under some of these new provisos, activists or whistleblowers would be required to submit written reports of any signs of abuse they witnessed and all supporting evidence to authorities within a matter of hours—or face criminal charges themselves. Whistleblowers would not even be allowed to keep any copies of materials they submitted to authorities. Critics say the measures are a cynical warping of so-called good Samaritan measures that require reporting child abuse or sexual assault. Only in this case, by analogy, a teacher who later came to suspect child abuse could be prosecuted for not reporting the first bump or bruise.
"It's absurd," said Amanda Hitt at the Government Accountability Project. She said she couldn't believe that an industry that has been so regularly recorded breaking the law "would then have the audacity to come to any state legislative body and say, 'Hey, we're sick of getting caught doing crimes. Could you do us a favor and criminalize catching us?'"
But that's exactly what has happened in Nebraska—under the guise of a new advocacy group called We Support Agriculture. In 2010, the Nebraska Cattlemen, Nebraska Farm Bureau, Nebraska Poultry Industries, Nebraska Pork Producers Association, and Nebraska State Dairy Association formed the organization to "defend the responsible animal welfare practices of Nebraska's farmers and ranchers from attacks by outside animal rights extremist groups." The effort was fraught with scandal from the start. First, the group received a $100,000 grant of taxpayer funds from Nebraska Attorney General Jon Bruning (who was running for US Senate at the time)—even though it didn't yet have employees, offices, or initiatives of any kind. It later came to light that Bruning approved the grant via email just 32 minutes after the request was submitted. Since then, the Omaha World-Herald has uncovered 1,800 phone calls, many of them late at night, between the group's first executive director, its only employee, and Nebraska's married lieutenant governor, Rick Sheehy. (Sheehy resigned over the scandal involving this and other relationships in February.)
Despite the controversy, We Support Agriculture has pressed ahead with distributing material disparaging animal rights activists supplied by none other than Richard Berman and the Center for Consumer Freedom. Ron Meyer, a cattle rancher who attended an early We Support Agriculture meeting, said local meat producers were told that the goal of the Humane Society of the United States was "to destroy animal agriculture and force everyone to become either vegetarian or vegan." But Meyer said that the HSUS spokesman he met in 2011 was a hog producer from Missouri and that 95 percent of HSUS supporters eat meat. "Since 1980, Nebraska has lost 91 percent of its independent hog producers, 80 percent of its dairy producers and 40 percent of its beef producers," Meyer wrote in an editorial for the Lincoln Journal Star. "It was not HSUS that drove them out of business. What drove them out of business was a market increasingly controlled by multinational food corporations that include the large meatpackers, which destroyed competitive and fair prices and operate with no transparency." Still, We Support Agriculture has enjoyed the steadfast support of Gov. Dave Heineman (who said of the HSUS: "We're going to kick your ass and send you out of the state") and a 27-year-old, Georgetown-educated state senator named Tyson Larson.
In January 2012, Larson introduced LB 915, a measure intended "to protect agricultural businesses from attacks by animal activist groups." He claimed that activists were gaining access to farms under false pretenses and injuring animals themselves in order to stage hoaxed videos. "I remember that they stuck a pitchfork in a cow's butt region and took pictures of it," Larson said. He also criticized PETA for its practice of conducting investigations lasting at least 30 days—meaning, he testified, that abuse at the hands of animal activists would last more than a month. His goal was twofold: first, to criminalize "obtaining employment at an animal facility with the intent to disrupt the operations of the business" (a notion lifted directly from the initial draft of the Iowa bill) and, second, to require that any witnessed abuse—or even "suspected abuse"—be reported within 12 hours, accompanied by any and all documentation of that abuse.
But that kind of requirement runs smack into constitutional protections for the press. Floyd Abrams, the renowned First Amendment attorney, told me that videos like those made by PETA and other animal rights organizations constitute newsgathering—and as such the activists are afforded the same protections that any journalist would enjoy. "There are limits as to the burdens that you can impose upon newsgathering," he said. "And while not every effort at newsgathering is protected under the First Amendment, the underlying constitutional reality remains: The state, the government, can't pass a law that so limits, burdens, threatens, or criminalizes newsgathering about important matters of public concern as to chill those efforts." Such a statute "could, in effect, criminalize newsgathering," Abrams said, "by requiring that information that is learned be turned over to authorities." Such a requirement "within any period of time seems to me highly likely to be held to violate the First Amendment." Nebraska's legislators reached much the same conclusion, and Larson's bill died in committee.