Consumers have a fundamental First Amendment interest in access to information about food production. Ag-gag laws impede access to information about the food we consume and the conditions under which our food is produced. Criminalizing the undercover investigative conduct of journalists, whistleblowers and activists unconstitutionally constrains the free speech rights of consumers to receive relevant information.
Many consumers make food product choices based on a range of concerns beyond calories and content. Recent research commissioned by the food industry reveals that consumers are demanding more transparency about production than ever before. The process of food production matters to many who may have personal religious, ethical or political commitments.
A connection between food consumption and faith commitments remains important in some communities. Consumers who keep Kosher need information about the conditions of food production. Without access to information about how food is produced adherence to religious or ethical commitments could be compromised.
Consumers rely on activist whistleblowers and investigative journalists for vital information about food production. The First Amendment protects recording and by extension it protects the right to record matters of public interest even where undercover investigative strategies are used to obtain information in certain instances.
The documentation and dissemination of conditions of agricultural production could serve inform policy debates and even new laws to improve conditions in agribusiness. It is constitutionally problematic when states enact restrictions on speech in an effort to control the discovery and dissemination of information to an interested public.
To be sure, Utah has an interest in regulating food safety and in protecting the integrity of its agricultural industry sector, but censorship is simply not the solution. Interests expressed by state legislators in support of ag-gag initiatives speak to an intent to silence "extremist vegetarians" and "propaganda groups" that they believe want to harm business.
A 2016 study published in the journal Food Policy found that consumers lose trust in farmers after learning about ag-gag laws. If the aim of ag-gag efforts is to avoid casting agribusiness in a bad light, the existence of laws limiting access to information appears to make it more likely that the public will believe that business has something to hide.
State efforts to stop the collection and dissemination of information about food production ultimately harm the public and do nothing to help agricultural producers protect the health and safety of animals or employees. More than a victory for animal rights activists, the court's ruling in Utah also serves to vindicate the right of the consuming public to make informed choices.
Erika George is a professor at the University of Utah S.J. Quinney College of Law where she teaches constitutional law, international human rights law, international environmental law and civil procedure. She has testified before international human rights treaty bodies and foreign governments on international human rights law, racial discrimination and gender violence and also has an interest in free speech issues.