Washington State Politicians Draft Bill To Criminalize Whistleblowing In Agricultural Animal Cruelty Cases

By Darren Smith, Weekend Contributor

washington-flag-sealIn what some regard as an affront to both free speech and whistleblowing, Washington legislators Joe Schmick, J. T. Wilcox, June Robinson, and Vincent Buys sponsored House Bill 1104 introducing the new crime of “Interference with Agricultural Production.” The bill, if signed into law, will have the effect of criminalizing whistleblowing and the free speech activities of those seeking to publicize allegations of animal cruelty and other concerning farming methods under the guise of protecting agribusinesses from economic harm.

The bill also provides for troubling retributions against those who have traditionally revealed acts of cruelty to animals and shown food safety abuses by several farms and businesses.

According to the bill’s language, regardless of the merits of those accusations, if any economic damage results from these whistleblowing activities the defendant individual may be held to suffer up to double the damage for which the agribusiness alleges to have suffered.

The full text HB 1104, (in its present form as of this publication date), may be read HERE.

The concerning language of the bill is as follows:

(1) A person commits the crime of interference with agricultural production if the person knowingly:

(c) Obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or physical injury to the facility’s operations, real or personal property, personnel, or goodwill, including livestock, crops, owners, employees, personnel, equipment, buildings, premises, businesses interests, or customers;

(d) Enters an agricultural production facility that is not open to the public and, without the facility owner’s express written consent or pursuant to judicial process or clear statutory authorization, makes audio or video recordings of the assets or conduct of an agricultural production facility’s operations;

(3) A person found guilty of committing the crime of interference with agricultural production is guilty of a gross misdemeanor

Section (c) raises the issue where in practice animal welfare of food safety advocates obtained employment with the intent to reveal what they considered to be unethical practices by their employers. These activities, while certainly concerning to the employer, have revealed with accurate detail some clear violations of animal welfare and food safety that would have otherwise unreported to the public. Such actions have led to in some cases regulatory action by government agencies and several bankruptcies of the offended agribusinesses.

In the past a criminal prosecution against an employee engaged in these activities would have zero merit and at most the activist employee could face termination for their actions, but still would be subject to various state labor laws regarding whistleblowing protections and fair employment. But under the terms of this bill, such actions would now constitute criminal offenses. Moreover, under the terms of the bill if such activities revealed unlawful actions on behalf of the agribusiness, any economic damage such as market sanctions by consumers or regulatory fines could be assessed against the whistleblower if a district court judge elected to impose such a fine; and could do so with double damages.

animal-abuse-chicken-cageMoreover, the bill creates nebulous claims against the individual by means of allegations of damaging the “goodwill” of the agribusiness. Goodwill includes, among other elements, the economic value of a business or entity as measured by reputation, history, brand equity, perception of quality, credit, and credibility. These types of assets are difficult to assess even from an accounting or legal basis. However under this bill an agribusiness can assert such amounts despite having no definitive value. This could be asserted as a means to further sanction the accused and therefore further chill whistleblowing activities of others.

There could also be cases where a worker hired under ordinary means and having no prior intention of obtaining employment for the purpose of reporting the agribusiness’ activities. If later he or she became concerned of wrongdoing by their employer they could also be subject to arrest if they chose to video violations of food safety and reveal this to the public.

Food safety and animal cruelty organizations could themselves be sanctioned by such activities because under Washington Law, corporations either profit or non-profit, can be held criminally liable for violations.

The bill is sponsored with the supposed goal of eliminating harm to business from vandals and other groups such as the Animal Liberation Front which have been accused several times of orchestrating sabotages against agribusiness. While this certainly has merit and the state can articulate a need to curtail such practices these acts are already codified in the criminal trespass, burglary, malicious mischief and criminal sabotage statutes.

If this bill is written into law it faces an almost certainty of a legal challenge on first amendment rights along with being in violation of existing statutes relating to whistleblower protection. But, the fact that such a bill was sponsored by these legislators to begin with shows a true lack of understanding of the larger picture of citizen advocacy, free speech, and consumer protection.

Idaho passed a similar law which is currently in litigation in the U.S. District Court for these reasons. A copy of the complaint may be read HERE. The complaint provides for additional reading on the subject.

By Darren Smith


Washington Legislature
Animal Legal Defense Fund

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

31 thoughts on “Washington State Politicians Draft Bill To Criminalize Whistleblowing In Agricultural Animal Cruelty Cases”

  1. I am also curious how the woman who freed an injured eagle (xyz’s link) was “tracked down?” Did she report it herself the next day and then get charged? What? The case was dismissed, so no harm,no foul…except to the injured then euthanized eagle.

  2. I must repeat my opinion, if you criminalize whistle blowing, no one will blow the whistle, even when honest and working within the system instead of to some media outlet. I’d have been jailed by 1999 for working to stop law breaking within my organization, with no publicity or contact with media…I simply found those who could effect change and did so. No fanfare. It is egregious to go directly to media, when there are are alternative courses of action that work far better…e.g., they actually effect change.

  3. I don’t know why there is lawful eagle trapping, but that type of trap is terrible! So they killed it. I thought Eagles were protected. Look at kyz link. There’s a picture of an eagle in a trap, so very sad!

  4. http://www.dailymail.co.uk/news/article-2925722/I-m-not-eco-terrorist-Woman-arrested-told-jailed-freeing-eagle-stuck-horror-trap.html

    ‘I’m not an eco-terrorist’: Woman arrested and told she will be jailed after freeing eagle stuck in horror trap

    Kathleen Adair freed an eagle from a trap and sprung 3 more in Alaska
    39-year-old was hauled into court charged with hindering lawful trapping
    The eagle was found and euthanized three days after she freed it
    Adair faced 30 days in prison and $500 fine, which has been dismissed

  5. Richard:

    “Karen S, but before there can be a warrant, there must be some evidence of wrongdoing. If employees are threatened with criminal sanctions if they speak up, where does that initial evidence come from?”

    I absolutely agree. That is why I oppose the law that criminalizes whistleblowing.

  6. I used to live in a rural community in California, where there were a lot of huge chicken ranches that produced millions of eggs. In that state, an agricultural investigator is on the premises daily to make sure that the mega ranches, who produce food for commercial use, stick to the state regulations. They are in charge of checking everything from the animals health, to the the food their fed, cleanliness of premises, to the sorting and candling of the eggs.
    I would think Washington State would have similar regulations, restrictions, and overseeing authority.

  7. Karen S, but before there can be a warrant, there must be some evidence of wrongdoing. If employees are threatened with criminal sanctions if they speak up, where does that initial evidence come from? Certainly, areas controlled by street gangs operate on this basis–as long as no one in the neighborhood talks, law enforcement will be largely ineffective to control criminal activity. Imposing harsh sanctions on those who talk, or just threatening to impose such sanctions, will leave you much freer to carry on any criminal activities you may be engaged in. With a law such as this, law enforcement officers and prosecutors would even help sanction those nasty rats trying to interfere with business.

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