Defending Rights & Dissent Condemns Anti-Whistleblower Law Passed in Arkansas

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On Thursday March 23, 2017 Arkansas Governor Asa Hutchinson signed into law a bill that would allow businesses to sue whistleblowers if they take video or pictures in a nonpublic area of a commercial property without the authorization of their employer. While it received wide support in both legislative houses, 75%  percent of Arkansas residents opposed such a bill.  

This law is aimed at animal rights advocates, who frequently mount undercover investigations by obtaining employment at animal enterprises and then filming the mistreatment of animals to expose animal abuse.However, the bill defines commercial property to include business properties and residential properties used for business purposes. A nonpublic area is defined as any area not open to the general public.  Such a broad definition would apply to whistleblowers generally. Anyone who wishes to document corporate malfeasance could potentially be civilly liable under the law.  As the Humane Society of the United States explained, “The bill is so sweeping that it would also gag employees who try to expose the abuse of children at a daycare center.”

Although broad in nature, the law’s definition of commercial properties also includes “[a]gricultural or timber production operations, including buildings and all outdoor areas that are not open to the public[…]”  Activists, even when they are employed by an animal enterprise, are by their very nature exposing corporate wrongdoing. Therefore, they document animal cruelty without the authorization of their employer. Nearly any footage captured by such an activist, whether it be on the slaughterhouse floor, in an area where animals are housed or transported, would be in a non public area. This would equally apply to a longtime employee with no connections to animal rights activist who, witnessing violations of animal cruelty laws, decide to become a whistleblower and film abuses. While the law enacts a general gag of whistleblowers, it is easy to see how it is designed to respond to undercover investigations conducted by animal rights organizations.

In a forthcoming report, Defending Rights & Dissent will document how powerful corporations have responded to the success of  undercover videos made by animal rights and animal welfare activists by trying to use legislatures to muzzle their critics. In Idaho, legislators responded to undercover investigations that led to criminal animal cruelty charges by attempting to criminalize the very type of investigations that led to the charges.

These bills have been commonly referred to as “ag-gag” laws since they are designed to “gag” critics of the agricultural industry. Yet, the trend seems to be that these laws are increasingly becoming broader to no longer single out the agricultural industry for special protection, but attack whistleblowers generally.

This legislation is dangerous. Whistleblowers, whether they bring government or corporate misconduct to public light, are vital to our democracy. Legislatures should be enacting legislation that provides strong protection to whistleblowers, not legislation that seeks to gag them.

This type of legislation also has blatant First Amendment problems. It is bad enough that there are corporations that wish to protect their profit margins by muzzling their critics, it is even worse though, that there are elected officials who are willing to violate their constituents constitutional rights in order to appease them.