Iowa Outlaws Some Undercover Investigations As Other States Mull Bills

March 7, 2012

Would Upton Sinclair be jailed as a terrorist for working incognito in meatpacking plants before he wrote "The Jungle," considered a landmark of U.S. investigative journalism?

Under a new Iowa law, he very well might spend up to two years in jail. Under a federal law Congress passed in 2006, when combined with the Iowa law, Sinclair might spend up to 20 years in jail if public reaction to his journalism cost a meatpacking company a major loss of profits.

Iowa Gov. Terry Branstad signed the so-called "Ag Gag" bill (House File 589) into law March 2, 2012. The bill makes it a crime to obtain access to an agricultural facility "under false pretenses" — without defining "false pretenses."

Is a hidden camera "false pretenses"? Language outlawing hidden cameras was removed from earlier versions of the bill — but the enacted bill simply leaves that interpretation open and unresolved. Animal rights activists have often resorted to hidden cameras — and shared with news media photos and videos of shocking cruelty to animals.

The Iowa law also makes it a crime if a person "Makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false ... ."

What if a journalist applies for a job at a food production facility under his or her real name, but omits the fact that they are employed as a journalist? Is that illegal? Unethical?

There is some debate today in journalistic circles about exactly where those lines are drawn in investigative projects. While many think it was unethical for Peter Gleik to use a false name in getting documents from the Heartland Institute, few have questioned whether it was ethical or legal for journalists to base stories on the documents that Gleick supplied to them.

But questions arise. Will journalists now be visiting their activist sources in jail? Will they refuse to name sources who have violated Iowa's ag gag law? Will journalists themselves go to jail to protect those sources?

The Iowa law gains added import because of the fact that seven other states' legislatures are considering similar bills: Illinois, Indiana, Minnesota, Missouri, Nebraska, New York, and Utah.

State ag gag law could gain leverage by synergy with a federal law known as the Animal Enterprise Terrorism Act. That law, passed in 2006, makes it a federal crime punishable by up to 20 years in jail to do certain things that cause an animal enterprise the loss of a million dollars or more in profits. But it seems to exempt, for example, a newspaper article about salmonella-tainted eggs that causes an egg wholesaler's sales to drop. The final answer might only be settled by a court case, and the federal law's penalties don't apply if the activity in question is "lawful." The question is: will the Iowa law, by making a broader swath of activities unlawful, bring down the heavier penalties of the federal anti-terrorism law?