Friday, May 13, 2011

States to Outlaw Factory Farm Investigations? (Part 4 of 4)

An interview with General Counsel to PETA, Jeff Kerr

As I wrote in my first post of this series, three state legislatures (Florida, Iowa and Minnesota*) have introduced bills to criminalize taking photos and videos of animals being mistreated on factory farms—while doing absolutely nothing to stop the widespread animal abuse that these undercover investigators document. The good news is that the Florida bill officially died on May 9, 2011 because state lawmakers failed to vote on it before the legislative session ended. Good job, Floridians! However, the Iowa and Minnesota bills remain active and could still pass. On that note, here’s the fourth (and final) installment in this sequence: my interview with General Counsel to People for the Ethical Treatment of Animals (PETA), Jeff Kerr.

Photo courtesy of PETA
Kerr earned his law degree from the University of Virginia Law School in 1987, and worked as a civil litigator for six years. At the age of 30, while employed as corporate counsel for a national health care charity, he went to attend a lecture that he found had been cancelled and replaced by one entitled “Did Your Food Have a Face?” being presented by an animal rights activist. The talk opened his eyes for the first time to the suffering of other species, and he quickly adopted a vegan diet—and nine months later signed on as PETA’s general counsel, a post that he has held for fifteen years.  

Kerr leads a team of six in-house attorneys who handle issues ranging from contracts, intellectual property and litigation to property acquisitions, non-profit tax-exemption and corporate governance. His main responsibility is overseeing all legal activities relating to PETA’s nine international affiliates around the world. Kerr has successfully defended PETA’s undercover investigators in numerous trials, most famously when the group documented and exposed extreme animal cruelty at a Covance testing laboratory in 2005. He insists that undercover investigations are essential to democratic society—and perfectly legal. “Investigation gathers proof,” he has said, “and the whole point of undercover work is to expose illegal conduct.”

Here is Kerr’s analysis of the bills proposing to ban undercover farm investigations:

AR: From a Constitutional Law perspective, do these bills violate activists’ First Amendment rights to freedom of speech and expression?

JK: The bills are unconstitutional on several grounds under the First Amendment. They violate free speech, and arguably freedom of the press, because they preclude the publishing or even possession of photos and videos. They also violate the Constitution’s Equal Protection Clause because they single out animal protection advocates, who are specifically targeted by this proposed legislation.

Essentially, these bills seek to criminalize being the eyewitness to a crime—which is absurd. Society should be encouraging citizens to come forward with information about crimes, and criminalizing people for taking photos and videos of criminal animal abuse thwarts their ability to come forward to law enforcement with that proof. These bills actually obstruct justice. What are people supposed to do when they see cruelty to animals in these facilities: draw a picture of it? It’s ridiculous! To prosecute somebody for cruelty to animals you need proof, and the videos and photos taken by undercover investigators are that proof.

In addition to making it illegal for activists, journalists and employees to document animal abuse taking place in agricultural facilities, would these bills also make it illegal to document other crimes?

Yes, these bills could have seriously deleterious effects in other ways, and that’s an aspect of this issue that deserves more attention. For example, what if employees witness criminal behavior such as drug use, theft, anti-union activities, or workplace safety violations? Under these bills, it would be a criminal act to photograph or videotape these crimes and show the evidence to appropriate law enforcement authorities or regulators. The consequences could be devastating to food safety and workers’ health, so it’s no wonder that the proponents of these bills are unwilling to even talk about this.

So I take it then that legislators are not writing exemptions into the language of the bills to address these ancillary effects?

The way these bills are written, they would prohibit people from exposing illegal activity of any kind. Legislators can’t add such exemptions because that would draw attention to the fact that they’re specifically targeting animal activists, which is blatantly unconstitutional.

Those proposing and supporting these bills argue that they are necessary to prevent what they allege are destructive acts committed by animal advocates. One of the most common accusations is that animal protection groups wait several weeks or months before reporting animal abuse to law enforcement. What’s your response to that?

First, looking at this from a legal/law enforcement perspective, we have to get proof that the animal abuses taking place in factory farms, slaughterhouses and other agribusiness facilities are standard practices for the businesses we investigate. If we can’t prove that through documentation, the prosecutors aren’t going to prosecute, and the facilities themselves hide behind the age-old ruse of claiming that “these are rogue employees, it’s just a one-time thing, this isn’t how we do business.” Yet over 30 years of investigative work by PETA has shown that cruelty is not an aberration: this is how business is conducted in these facilities on a daily basis, and the perpetrators cannot run from that fact. In every single undercover investigation PETA has conducted, we’ve found evidence of illegal animal abuse.

Second, when we did an undercover investigation of a Hormel food supplier in Iowa in 2008, one of our investigators did report illegal animal abuse to management—and was immediately fired on the spot. So we actually do report abuse, and that’s what happens. The people making these accusations about delays in reporting just don’t know what they’re talking about.

One of the most common accusations made against undercover investigators is that they literally “stage” acts of animal cruelty themselves and then claim they were committed by farm workers. However, all of the footage I know of shows farm employees, managers and owners abusing animals. So this makes me wonder, how could investigators possibly “stage” these abuses? Do these critics ever explain how investigators allegedly stage them—like by using CGI special effects or something?

There is literally no way our undercover investigators could possibly stage the video footage they capture, and here’s why. After every investigation PETA conducts, we create a detailed complaint, with all of the supporting evidence—including all of the unedited videotape, all of the investigator’s log notes, and a comprehensive legal analysis—and we turn it over to the prosecutors and regulators. We have gotten landmark felony and other animal cruelty convictions, the first of their kind, against factory farms in North Carolina, Iowa, and other states because of the strength and power of the proof we’ve presented to prosecutors. If there was any possibility whatsoever that our evidence was not authentic, prosecutors never would have used it to prosecute.

The legislators and others who make these unfounded accusations are defaming per se because they’re falsely accusing animal protectionists of providing fake evidence, which is a felony. Meanwhile, not one person making these accusations has ever identified a single instance in which any undercover investigation video has been staged. PETA regularly takes action to make people cease and desist from making such false claims. For example, I recently sent a letter to State Representative Annette Sweeney, the main sponsor of the Iowa House bill, calling her out on her defamatory statements suggesting that these videos are staged. She made those statements publicly, outside of the legislative framework, and has no immunity for making those allegations. People who make these ludicrous claims back down when we threaten them with legal action, and we have every expectation that Sweeney will do the same.

When people claim that videos have been staged by activists, aren’t they basically insinuating that prosecutors, judges and law enforcement officials are stupid because they can’t tell the difference between real and faked footage?

(Laughs) I think implicitly, sure. The other thing factory farmers try to hide behind is the false notion that they’re heavily regulated and inspected by the U.S. Department of Agriculture (USDA). Well, in 2004 and 2005, we did two separate investigations of Agriprocessors, a kosher slaughterhouse in Iowa, in which we caught workers on video shocking cows in their faces with electric prods, ripping their windpipes out while they were still conscious, and dumping the animals onto the floor as they struggled and blood gushed from their throats. These violations of the Humane Methods of Slaughter Act were taking place while federal inspectors looked on and did absolutely nothing. The USDA’s own report stated that one of their inspectors accepted gifts of meat from Agriprocessors, failed to report violations by them, and committed, in their phrase, “other acts of misconduct.” So even the regulators aren’t doing their jobs. In this kind of environment, the only way to bring about meaningful reform and an end to this abuse is by doing undercover investigations.

Are there laws in some states that already restrict or prohibit undercover investigations?

Before conducting any investigation, we look at that state’s laws so we can comply with them. Certainly there are differences in the laws across various states, but there are no laws that even come close to what the bills being proposed would do.

Factory farmers constantly proclaim how much they “care” about animals—especially, it seems, when confronted with overwhelming evidence to the contrary from undercover investigations. If they really cared about animals, why are they and the legislators behind these bills so dead-set against showing the public how they treat animals?

Here’s an example from a historical perspective that makes a sadly ironic comment on contemporary politics. Upton Sinclair basically invented the field of investigative reporting in the early 1900s when he went undercover as a worker in the Chicago stockyards and wrote The Jungle.  This novel led to the first regulations of animal agriculture in U.S. history. So back then, over a century ago, the government did the right thing when egregious abuses were exposed: they regulated the industry to try to halt the abuses. But today we’ve got legislators doing the exact opposite: instead of implementing additional, stronger penalties and regulations to protect not only animals but the safety of the country’s food supply, they are trying to slam the shutters closed so that no one can see what goes on inside these facilities. They are aiding and abetting the abusers.

What elected officials really need to be doing is introducing legislation requiring that cameras be placed in animal agriculture facilities so we all can see, all the time, what goes on in there. In fact, PETA’s position is that this footage should be subject to Freedom of Information Act requests. Facilities should be required to turn the footage over to inspectors, and it should be part of the state and federal regulatory file so that people can see it. No one has the right of privacy to commit acts of criminal animal abuse. I’m originally from Missouri, the “show me” state. As we say there, if farmers are really doing everything right, as they always claim, then they should show us! 

Generally speaking, what do you think these bills might mean for the animal advocacy movement? 

These bills are clearly having an effect that their proponents didn’t expect, in that they’re generating opposition and shining a light on the animal abuse and criminal behavior uncovered in these investigations. Consumers, including those who eat meat, want animals to be treated decently and not abused. So in a way, these bills have helped the animals’ cause because they’ve put the issue back into public debate in the same way that our undercover investigations do all of the time—and I believe this is a debate that factory farmers are ultimately going to lose.

- Iowa Residents: Use this convenient HSUS Action Alert to encourage your state senator to oppose S.F. 431. Also contact your state senator directly, and ask him or her to oppose this bill.

* The Minnesota bill has also been defeated since I posted this interview. However, New York legislators proposed an Ag Gag bill afterwards. 


  1. On the bright side of tyranny, if these bad bills pass then leaking video as anonymously as possible is the best option; keeping a leak anonymous in that case is obviously difficult. I don't know about the first amendment argument... it could go either way depending on the judges deciding, e.g. depending on whether a judge has better or worse views.

  2. What you're saying is completely true. I know that everybody must say the same thing, but I just think that you put it in a way that everyone can understand. I'm sure you'll reach so many people with what you've got to say.

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