The years-long fight between farm organizations and animal rights activists over laws prohibiting secretly filmed documentation of animal abuse is moving from state legislatures to federal courts as laws in Utah and Idaho face constitutional challenges.
Half of U.S. states have attempted to pass so-called ag-gag laws, but only seven including Indiana have been successful.
Indiana's proposed ag-gag law was scaled back considerably before receiving Gov. Mike Pence’s signature earlier this year. It makes trespassing on the production area of a farm a criminal offense and causing property damage to a farm an act of criminal mischief.
Among the other states with ag-gag statutes are Idaho, where the law says unauthorized recording is punishable by up to a year in jail and a $5,000 fine, and Utah, whose 2012 law makes it a crime to provide false information to gain access to a farm.
Both states now face separate but similarly worded lawsuits that say the measures violate federal statutes offering whistleblower protections and free-speech guarantees.
Farm organizations and livestock producers say ag-gag laws are aimed at protecting their homes and businesses from intruders, and some plan to use social media to assure the public they have nothing to hide.
But animal rights groups, free-speech activists and investigative journalists want to throw out the laws because they say the secrecy puts consumers at higher risk of food safety problems and animals at higher risk of abuse.
Numerous investigations have taken place on farms in the past decade, leading to "food safety recalls, citations for environmental and labor violations, evidence of health code violations, plant closures, criminal convictions, and civil litigation," the Idaho lawsuit says.
One such investigation was conducted by the Humane Society of the United States in Chino, Calif., in 2007, and led to the largest meat recall in U.S. history. Undercover video at a slaughterhouse showed cows too weak or sick to walk dragged by chains, rammed by forklifts and sprayed with high-pressure hoses. It was released after three attempts to get the facility's USDA inspectors to do something, and the government ended up recalling 143 million pounds of meat, including 37 million pounds intended for the school lunch program.
"These ag-gag laws are putting the public at risk and they further erode what trust there is among Americans for the meat industry," said Paul Shapiro, the society's vice president of farm animal production.
Well aware of the image and trust problems that the investigations and subsequent laws have created, some farm groups have decided to change their strategy — forgoing the usual political channels and instead communicating to the public the scope and use of animal care standards.
"We're going to step up now and figure out how to address the issue within our own community rather than relying on legislation to block information," said Ryan Goodman, spokesman for the Montana Stockgrowers Association. "We do want to be open and transparent with the public and not come across as if we're trying to hide something, because we're not. We're just trying to protect our own families and businesses."
The livestock group has various social media accounts, including on Twitter, YouTube and Pinterest. He also writes a blog.
"That comes across communicating the message a lot better than saying we went to the Legislature and lobbied on this issue," Goodman said.
Another concern about some undercover investigations is that video is edited down to short clips and narrated to distort the truth, Iowa Secretary of Agriculture Bill Northey said.
"People were essentially creating false narratives and getting on farms and actually not even representing what was happening on those farms," he said. "We want to make sure bad stuff isn't happening out there. If somebody is doing something wrong it needs to stop, but some will try and paint the whole industry as those handful of outliers."
Chris Green, a spokesman for the Animal Legal Defense Fund, which along with People for the Ethical Treatment of Animals is a plaintiff in both lawsuits, said farm groups should be concerned about the public's perception that slaughterhouses and farms are operating in the dark.
"There's this pro-whistleblowing sentiment that exists in the U.S. populace," Green said. "Anything that indicates anti-whistleblowing indicates someone is trying to hide something from the American people and that doesn't bode well."
Other states, including those that have tried and failed to pass ag-gag laws, will watch closely to see whether these two constitutional challenges hold up. But they might be waiting a while: The Idaho lawsuit, though recently filed, is not yet set for trial and deadlines for motions stretch into next year, and Utah's is also just getting started.