By Darren Smith, Weekend Contributor
In 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.
Moreover, 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
Animal Legal Defense Fund
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