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
Source:
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.
Follow the money right to these legislators.
I support improving animal welfare in agriculture. The reason why I keep my little flock of organic hens is that it pleases me to know my eggs come from content birds in a friendly social group, no stress, organic diet, and plenty of room to roam. They live in the Cluck Mahal, plus they get time in the backyard with my dogs guarding them from coyotes.
The only problem I have with the tiny improvement in living space afforded by the CA law is that it prevents CA producers from competing in other states, that do not have this law. It makes eggs more expensive to produce in CA. I wish other states would enact a similar law. It is still way too little space for the birds. If our state didn’t waste so much money in graft, we might have had grants that would help producers upgrade their equipment.
It sounds like this law is directed against moles, and those who trespass in order to get damaging evidence.
I don’t think a law against employees who get a job under false pretenses is a good idea. It’s a hindrance against free speech, and it can be used as a weapon against whistleblowers.
Perhaps evidence should not be allowed if it’s obtained via trespassing, or otherwise breaking the law. It would be better to obtain a search warrant.
I’m thinking here along the lines of an unconstitutional prior restraint
What has happened to the Pacific Northwest? I have visited and it’s uncanny. That’s where Starbucks started. Now has people all over the country paying $5-6 for a cup of coffee. Free refills? Another Super Bowl with Pat Carroll, former SC coach, just to tick off Californians. And sweet Senator Murray, bearer of letter to President from lovely couple sitting on each side of Michelle. She has not changed her hair style or bought new clothes since her first election! The economy needs you to spend!
In this State all kinds of bills are “introduced”, its when it seems they might get it through the (2nd House) Senste, that real concerns are merited.
This is not about reasonable behavior being protected, it is about unreasonable behavior being protected, and it does not reach mom and pop, just conglomerates with shareholders that only care about the beans counted in facilities well remote from the occurrence of the offending behavior. Just wrong, but who will stop it? (I have previously seen that the laws as enforced in the state of Washington are remarkably pro business. Each state has some character in its case law and Washington’s is clearly discernible.)
First of all, I can see how this would be used to prevent any employee from whistle-blowing; not just those hired under fraudulent purposes. Secondly, is it legal to compel employees to non-disclosure of illegal practices?
With all of his posts, Darren is definitely not on the Washington Convention and Visitor’s Bureau.
A totalitarian state. America. Sixty years ago who would have thought it?
I’m torn on this legislation’s intent. I am all for ethical raising of animals and prevention of wanton cruelty in the raising and processing of animals used for food. California’s latest law on how chickens must be raised, giving them room to live, has made the cost of eggs go up substantially. My last dozen eggs purchased from Safeway, since our local guy was out of eggs at the time, was $4.89 a dozen. More than double the price from before. I’m ok with this, since I can afford it and especially since the idea of chickens raised the these inhumane conditions is abhorrent.
However, my thoughts on this legislation are that it isn’t JUST about animals and there does exist industrial sabotage so this may not be a bad law in some respects to protect not just big growers but to help preserve the small family farm and boutique growers. To play devil’s advocate:
1. It is about agri- business. All agricultural businesses and not just those with animals. There are already…..again in California…..multitudes of ridiculous rules that affect the growers of lettuce, broccoli and other substances that will make it VERY expensive and some rules that are actually impossible to comply with.
http://www.cdfa.ca.gov/Subject_Index.html#w
Before everyone piles on, I am all for rules that keep our crops and food safe. However, I am against rules that are arbitrary and impossible to comply with and which will drive small farms out of existence since only LARGE Agribusiness can afford to comply
2. People, who are activists, not just PETA but many other eco-nazi types have been known to purposely infiltrate and to commit themselves the infractions in order to create ruin for the grower. Competitors could also send in subversives.
One example of how this would work that doesn’t involve animals would be for an activist or an infiltrator from a competitor, to work for a lettuce farm and the activist uses an illegal pesticide without the grower’s knowledge. Then reports this to the authorities and the grower is forced to destroy his crop and lose all of the income and expenses already spent. His reputation is ruined and no one will buy his lettuce, even that grown without the illegal chemicals. He will be literally driven into bankruptcy.
http://www.growingproduce.com/vegetables/california-forces-grower-to-destroy-crop-for-illegal-pesticide-use/ Not that this one here with the strawberries is an actual case of subversives or activists, but this happens all the time.
As someone who has been a “whistle blower” I can’t find anything good about this proposed legislation. Of course my view point is that an honest whistle blower will try to use means short of running to the media first…as I have said before here. If your whistle blowing does not effect real change, it has been futile….a lot of noise that really changes not much…just rearranges the deck chairs so to speak.
Most states have departments of agriculture that oversee these activities. If one wants useful legislation, then pursue setting tough rules for husbandry, processing, and state inspection, which requires funding to be on-going and effective.
Part (d) pretty much eliminates the Bill is to prevent Saboteurs hypothesis
bankster
It’s called an oligarchy and Plato was concerned about special interests going toe to toe with democracy 2,500 years ago. The scary thing is that those making up this or that special interest actually believe that this is good for America, follows the Constitution, and is what America is all about, freedom to do what you want. The more things change, the more they stay the same.
I don’t see anything in the bill that restricts it to physical damage or false allegations, or to speech made by a deceptively hired employee. On its face it would criminalize speech asserting that a particular grower uses a specific dangerous pesticide, even if that speech were true, if the person intended to affect sales of the resulting products or knew that it would have that effect.
Certainly the law is intended to, and will, deter employees from disclosing improper activities. It will certainly limit the ability of the government to enforce regulations and laws. By imposing criminal sanctions on an employee who gathers evidence, even to the extent of making it a crime for him to record what he sees with his own eyes, leaves the business owner free to deny the wrongdoing involved and destroy the employee making the disclosure. Who is likely to have more pull with a local prosecutor, the owner of an agricultural business or an employee of that business.
There is a big difference between someone stating that making a profit is evil (which to my knowledge Sen. Warren has not done) and stating that there are moral limits on what for profit corporations should be permitted to do to make a profit. There are all sorts of these limits already in existence. We don’t allow slavery, child labor, unlimited pollution of our natural resources, etc., we have antitrust laws, etc.
Debating what the limits on the behavior of for profit businesses should be is important in a democracy, and debate is meaningless if you can’t obtain the information necessary to debate the issues. This proposed law is designed to inhibit getting the facts needed to have a meaningful debate. That may not be the sole purpose of the proposed law, but it will have that effect. Good post about a bad proposed law.
The bill protects an employer from acting against his best interest by hiring saboteurs, and protects against invasion of property. Let’s lighten up on the idea that any entity which makes a profit is evil. Warren is not running for president.
At least these animal cruelty supporters aren’t trying to make it a felony to bring to light the deplorable and ungodly conditions that some animals are forced to endure under their merciless overlords.
So what’s next? If an oil giant is purposely spilling oil into a stream, should a whistleblower be jailed for bringing that to someone’s attention? After all, it would affect profits. Or what if an honest mortgage broker decided that he could no longer perform the company policy of granting mortgages to anyone who could fog a mirror and reported that to authorities. Would he face charges because it could harm profits?
The affects of these muzzle the truth teller legislative acts are wide ranging. There are few people who would jeopardize their career and face ongoing legal challenges and potential jail term to tell the truth. These type of laws damage more than free speech, they create an environment that encourages cruelty, barbaric behavior and lying, since the penalties for the telling the truth can be worse than lying or participating in the lie for the individual.
The truth is punished and the lie is rewarded. Welcome to the new corporate controlled America.
Great piece Darren. This legislation is shameful. It should not become law, but certainly should be struck down by the courts if it does pass into law. It is hard to believe legislators would even sponsor such a bill. It just goes to show what money can buy.
Darren – I think you are wrong on this on. The first para set the whole statute up. This statute is not anti-whistleblower but anti saboteur.
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