It was U.S. Supreme Court Justice Louis Brandeis who said that “a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” He meant that various state legislatures, especially over a period of years, may try different solutions to the same problem. The “laboratories of democracy,” as state legislatures are often called, almost inevitability will try new ways to solve the same problem. lawsuit documentSince 2010, animal agriculture in one state after another has sought more protection for facilities that animal activists are known to surreptitiously enter in order to digitally record what’s going on inside. These activists are not out to do any physical harm, just emerge with evidence of animal abuse that may exist. The allegations are often carefully targeted at suppliers for national brands. Sometimes independent animal welfare experts agree with the allegations of abuse and sometimes they don’t. Food safety becomes a concern whenever animals are subject to severe pain or extreme discomfort. The largest beef recall in U.S. history occurred after one of these undercover activists filmed downer cows being moved to the “kill box” with a forklift. But animal agriculture interests in various states found the tactics it was facing were unfair. Usually the undercover operative lied to obtain access and departed with total control over the digital evidence. Animal agriculture began demanding new tough laws with criminal penalties for lying on an employment application form, prohibiting recordings of any kinds from areas not open to the public, and immediate reporting requirements for any kind of animal abuse, It is these laws that animal activists have labeled “ag-gag” bills because they would prevent negative information about animal agriculture from getting out. “Ag-gag” bills popped up in about 20 states from 2010 to 2014. Iowa, Idaho, Utah, and Missouri are among the states that adopted “ag-gag” laws during this time period. Those states hung their laws on their criminal statutes. Journalists are concerned about the sections of these state laws that appear to include a prior restraint against audio or video recording of private properties. And because both the Idaho and Utah “ag-gag” laws are being challenged in federal court, it was thought that other states might wait for those decisions. The first partial ruling is expected any day now in the challenge to Idaho’s law. U.S. District Court Judge B. Lynn Winmill is expected to render a decision on First Amendment and Equal Protection aspects of the case. The challenge to Utah’s law is scheduled for trial during the third quarter of 2016. However, now the “laboratories of democracy” have added a new twist. North Carolina has come up with an “ag-gag” law that contains nothing from the old template at which the federal judges in Idaho and Utah are looking. The North Carolina law, which still needs the governor’s signature, is fairly simple. Any employee who wanders off to a closed area of the premises and collects something he or she is not permitted to have can be sued by the boss. The civil action could end up costing the employee up to $5,000 a day. But there would have to be real damages decided by a real judge. Criminal charges, prior restraint and deadlines for reporting any evidence of animal abuse are all missing from the North Carolina law. Those expected federal court rulings about the criminal based laws in Idaho and Utah won’t apply to the Tarheel State because it’s going the civil route. So North Carolina has cooked up something different in its lab. It’s trying to address the same issue, but with a completely different prescription. Animal activist organizations such as the Humane Society of the United States don’t like it any better and say that House Bill 405 is dangerous legislation. And that may be. But a law that merely sets up another cause of action for somebody to sue somebody is not exactly the sort of thing to lose sleep over. North Carolina is not putting the rest of the country at risk is they take this route. It seems to eliminate the constitutional wreckage created by the Idaho and Utah laws. And that’s what the “laboratories of democracy” are really about — deciding this is better than that.

  • Laboratories of democracy implies something noble, while this bill is little more than paid legislation for powerful agribusiness interests.

    Scenario: worker in chicken processing plant observes and films unsafe food handling practices and turns the video over to government officials. They, in turn, fine the plant and demand changes in practices that cost the plant money. The plant is now allowed to sue the original employee for the costs of both the fine and the changes to the plant.

    Yes, the bill could cover this exact circumstance. After all, how does one define entering a premise for a “bona fide intent”? A worker in the plant would assume it means entering a place of business they’re allowed to be. The company could determine that “bona fide intent” only applies to the worker performing their work–not filming violations the company is committing.

    And then there’s the provision for “attorney fees”, which is nothing more than a deliberate attempt to intimidate.

    “The problem, of course, with all this, is that defending oneself against such a lawsuit would almost assuredly be horrendously expensive and intimidating. An employee might conceivably “win” such a case but still lose his or her shirt in paying lawyers and other costs of defending the case. Moreover, as a practical matter, it’s easy to imagine how the mere threat of such a suit (particularly by some corporate giant) would be an enormously intimidating. How many average employees would be willing to take the risk of testing the matter under threat of being ruined financially for life?”

    In what universe is this a “good thing”, or even an example of a best practice coming out of the so-called “laboratory of democracy”?

    How can anyone interested in food safety condone any law that serves to undermine whistleblower protection, an essential element in food safety investigations?

    • Jerry

      I agree with your post whole heartedly, except the FSMA is a federal law and has whistle blower protections in it. If an employee of one of these firms reports their discoveries of violations through the proper whistle blower chain, then the firm nor the state can act adversely to the employee. Since FSMA is a federal law it supersedes state law and therefore the employee should not have to worry about this or other laws concerning food safety. If the person in question is not an employee and gained admittance to the company under false pretenses then that is another question and state law would probably apply.

      • Not when it comes to a _civil_ action. The whistleblower protections cover employment or retaliation. The individual would have to prove the company’s efforts were retaliatory. Yet the state has established that a company suffering financial losses has a legitimate interest in recouping its losses because of employee’s unsanctioned actions.

        If the person was actually arrested, or charged criminally, it would actually be better. There’s no gain to the company in this action, so it’s easier to see it as a retaliatory act. But a civil action to recoup lost income…the argument can be made that the action is being taken in good faith, backed by state law, and therefore not specifically being taken for retaliation.

    • a

      Agreed. Another example of how sophisticated the exploitation of our fragile nation has become. Thanks, politicians.

  • pawpaw

    Thanks, Dan, for thoughtfully recognizing our laboratories of democracy. Also interesting are consumer movements to affect “suppliers of national brands”. On issues such as antibiotic use, GMO, animal welfare, etc. Consumers can then choose those brands. Though national brands can also game the system. For the most part, the marketplace can help sort these out more nimbly than govt edict, as you have noted before.

    Though on issues of water and nutrient use and pollution, regional or nation-wide regs may be needed, as we all live downstream and downwind.

  • doc raymond

    Good post Dan.