Debate Over Indiana "Ag Gag" Bill: What Does SB373 Really Mean?

There has been a lot of press in Indiana lately about Senate Bill 373.  SB373 attempts to prevent undercover filming or photographing on farms, done without the farmer's permission and with the intent to harm farming operations.  Farm industry groups have lined up to support the bill.  Bob Kraft at Indiana Farm Bureau explained that the bill seeks to stop vigilante practices used to denigrate Indiana’s livestock industry.  Animal rights groups and some environmental groups have lined up to oppose it, calling it an "ag gag" bill.  Even Bob Barker--of Price is Right fame--interjected himself into the debate by sending a letter in opposition to the bill.  (And no, the bill does not prevent anyone from spaying or neutering their pets).  PETA said the bill would "make it illegal to film on factory farms."  Putting aside the debate, here are some facts about the bill:


What Does the Bill Prevent?

The bill makes it a Class A misdemeanor to: (a) enter on to an agricultural operation (b) with the intent to defame or harm the business relationship of an agricultural operation and its customers, (c) take a video or photograph of the farming operations, and (d) distribute the video or photograph without the consent of the owner.  All four of these elements must occur (a),(b), (c), and (d), in order for a jury to convict.

However, it is not a crime if the person videoing or photographing has a good faith belief they are documenting illegal activity and the video or photographs are provided to law enforcement within 48 hours.

In plain English, this means a number of facts would have to align to be guilty of a crime under this statute. A person would have to get a job at a farm under false pretenses, secretly video or photograph some farming activity, and then distribute the video or photograph more than two days later without consent of the farmer.  All of this would have to be done with the intent to harm the farmer's business.  Note that disclosing animal abuse would not result in liability if the video or photographs are given to law enforcement within 48 hours.

Why Does the Bill Exist?

Josh Trenary, director of business development at Indiana Pork, explained that the purpose of the bill is to deter the use of animal abuse footage to mischaracterize Indiana's livestock entire industry: "When this type of footage gets used by an activist organization as a fundraising mechanism, all the reputations of innocent producers who treat their animals appropriately are harmed.  That type of footage should only be used to punish the animal abuser, not to paint a picture that all livestock farms are like the one in the video."




What Would Be the Penalty for Violating the Law?

The punishment if convicted of a Class A misdemeanor under Indiana law is a maximum of one year in prison or $1,000 fine. I.C. 35-50-3-2.  Given the number of factual elements to prove, together with the element of subjective intent, I doubt any county prosecutor is going to be asking for additional deputies to enforce SB373 if it were to pass and become law.  If anything, its effect will be a deterrence to those seeking to film farm activities without knowledge or consent of the farmer.

Conclusion

It is sad that we are at a place in time where farms need legislative protection to keep activists away.  Most farmers I know would gladly show off their farms to interested persons--they are proud of their livestock and property.  If you want to see a farm, pick up the phone and call a farmer.  Their names are usually in the phone book.

To read SB373 for yourself, click here:  SB373.  Please note that the bill may evolve from time to time as it goes through the legislative process.

By Todd Janzen

Full Disclaimer:  I work for many of the industry groups that support passage of SB373.  The views expressed on this page are mine.
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UPDATE, April 8, 2013:  SB373 was significantly revised to make it essentially a bill that prohibits obtaining employment under false pretenses.  See the latest version here.

UPDATE, April 30, 2013:  SB373 did not pass out of the Indiana House and is dead for this year.