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By Trenton Morton
Tens of thousands of laboratories. Nine billion annual test subjects. Rapidly-evolving influenzas and force-fed antibiotics. This massive experiment is U.S. factory farming.
Factory farms, where 99% of U.S. farmed animals spend most of their short, miserable lives, “are ticking time bombs,” according to Sonia Shah, author of the book “Pandemic.” In an interview with Vox, Shah highlighted how factory farms could cultivate “virulent avian influenza and highly drug-resistant forms of bacterial pathogens.” You’re probably wondering though, why is this discussion in Indiana Lawyer?
Because two legal developments this summer posed a tension: First, an effort to conceal factory farming was the subject of a U.S. Supreme Court petition; second, a report from Harvard Law School and New York University, discussing the risks of zoonotic disease to humans, signaled the need for greater transparency about factory farming. This tension might not feature in the Supreme Court paper-shuffling, but it deserves attention. Factory farming causes unfathomable suffering and startling environmental degradation. Now, add in zoonotic disease risk. The public needs clarity, not concealment.
North Carolina, along with several states (including Indiana) and interest groups, want you to have no clue what factory farming looks like.
This summer, North Carolina petitioned the U.S. Supreme Court (with several states, including Indiana, and interest groups as amici) to review the invalidation of its Property Protection Act (PPA). Yes, this is an “ag-gag” law. North Carolina stresses that the PPA is about protecting private property, merely prohibiting employees from entering nonpublic, workplace areas, without an intent to do their jobs, to take documents or secretly record. (Petition, at 19).
Three features of the PPA show how unserious this position is.
1. Redundancy: Preexisting laws already cover the misconduct the PPA covers. The 4th Circuit pointed out that existing trespass, trade secret and nondisclosure agreement laws do exactly what the PPA purports to do. PETA v. North Carolina Farm Bureau Federation, 60 F.4th 815, 837 (4th Cir. 2023). I’m similarly flummoxed at trying to imagine what conduct — outside of expressive activity — the PPA penalizes that preexisting law didn’t already cover. It doesn’t exist.
2. Overbreadth: The PPA covers all sorts of expression. The 4th Circuit decried the PPA’s penalization of a 21st-century Upton Sinclair, who might “procure employment under false pretenses” and then expose misconduct. Id. at 829. Additional scenarios abound: A newspaper publishes a whistleblower account about child factory labor, resulting in interrupted production; an employee publishes video of elder abuse at a nursing home. The PPA is a clumsy legislative blunderbuss.
3. Revulsion: No one likes the PPA. The Wounded Warrior Project, the AARP, the North Carolina Council for Women and the Domestic Violence Commission opposed the bill that became the PPA. At the Supreme Court, agriculture is the only specific industry supporting the PPA.
In short, we have a law that only one industry wants, covering what preexisting property-related laws already cover, ensnaring, as collateral damage, whistleblowers and the press. So, is the PPA about protecting private property? Or is it about concealing the shame of one favored industry?
Harvard and NYU scholars have highlighted the risk of zoonotic disease in factory farming, showing why transparency is essential.
While some fought to conceal factory farming, others issued an omen. Scholars from Harvard Law School and New York University published a report on zoonotic disease, discussing factory farming, as an animal market of high human pathogenic risk.
Factory farming feeds into a disturbing trend: “As the size and stocking density of animal production facilities increase, so too does the likelihood of a potential outbreak.” These animals’ genetic similarity has led even the USDA to admit that we now have “the most disease-susceptible population of food animals in the history of mankind.” Research suggests that eight of the 10 mammalian species who share the highest number of viruses with humans are farmed animals.
Think of each farm as a massive petri dish. With this in mind, although many factory farms “have higher levels of biosecurity than other industries,” they also lack transparency, with much of our knowledge coming from “private undercover investigations or whistleblowers.” That is, what little we know comes from those who might be silenced.
And silence is untenable. Animal agriculture thrives on mismatches between perception and reality. Seventy-five percent of U.S. adults say they usually buy humanely-farmed animal products, despite the fact that about 99% of U.S. farmed animals live on factory farms. Only 46% of Americans think that eating less meat is better for the environment, even though, for example, beef causes over 100 times the CO2-equivalent emissions as peas, for the same amount of protein. Laws like the PPA will relegate zoonotic disease risk, like the ethical and environmental issues of factory farming, to an epistemic abyss.
Zoonotic disease risk is another reason, among many, why concealment laws cannot stand.
Hearts break, in our age of social media, over a single case of animal neglect, and Congress holds hearings about maritime shipping emissions and antimicrobial resistance. Factory farming, amazingly, amplifies and multiplies similar phenomena: Billions of animals languish; emissions spew out — shipping produces 3% of global emissions and animal agriculture produces 11–17%; and, of course, a “time bomb” of pathogenic risk ticks. Let whistleblowers and the press speak.•
Trenton Morton is a staff attorney for Mercy for Animals whose mission is to build a just and sustainable food system that is better not only for animals but for people and planet. He is also a member of IndyBar’s Intellectual Property Section’s Executive Committee.
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