DES MOINES, Iowa --- Iowa is on the verge of becoming the first state to criminalize recording sights and sounds at farms without permission from owners.
The hot-button issue surfaced in the waning days of the legislative session and pits environment and animal rights groups against farmers and agribusiness.
On one side are activists who surreptitiously record how animals are raised or slaughtered. On the other, owners who don't want what they see as interference.
The activists maintain their actions are protected under the First Amendment. Farmers counter the acts represent an invasion of privacy intentionally designed to damage their industry.
"They want to hurt an important part of our economy," said Sen. Tom Rielly, D-Oskaloosa. "These people don't want us to have eggs. They don't want people to eat meat."
Rielly is working on an amendment to legislation that passed the House with bipartisan support. He predicts the Senate will take up the measure this session.
If it passes there and the House agrees to an amended Senate version, the bill would go to the governor for his consideration.
Spokesman Tim Albrecht said Gov. Terry Branstad will wait until he sees the final version before lending support. Still, he said, Branstad "believes undercover filming is a problem that should be addressed, yes."
How lawmakers do that, however, will likely end up in court unless they decide the best way to address the issue is to drop the bill entirely.
Bigger than Iowa
Similar legislation has moved in the Colorado, Texas and Missouri statehouses but has never become law. This year, lawmakers in Florida, Minnesota and Iowa proposed bills, but only Iowa's and Minnesota's versions are still alive.
Each time legislation advances, animal rights groups move in. In Iowa's case, Mercy for Animals based in Chicago came first, then the better-known People for the Ethical Treatment of Animals.
Both groups held news conferences where they screened graphic videos taken by undercover members at farms. Both urged lawmakers not to support efforts that would curtail activists' ability to make such videos. Both suggested legal action was an option.
Dan Mathews, senior vice president for PETA, on Tuesday was in Minnesota. He said he had a meeting with Sen. Doug Magnus, the sponsor of legislation there, who indicated the bill would not go through this session. Magnus could not be reached for comment.
"With lawmakers in other ag states wanting these bills to die, the ongoing debate in Iowa makes it appear like the farmers there have more to hide," Mathews said. "That doesn't seem like a sensible promotion of Iowa agriculture."
Mathews then helped set up an email from Republican strategist Mary Matalin that went to House Republican leadership on Thursday.
"Greetings. I'm sorry to hear that House File 589, which would criminalize filming on farms, is still getting pushed along in Iowa," Matalin's letter begins.
The message concludes "if House File 589 succeeds, it may well single Iowa out as the state with something to hide, which I know can't be the case."
Rielly said it's not about hiding anything.
"What we're aiming at is stopping these groups that go out and gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name," he said.
Ronald Birkenholz, spokesman for the Iowa Pork Producers Association, said his organization supports the legislation because it helps protect producers from unscrupulous attacks. Heather Lilienthal, spokeswoman for the Iowa Farm Bureau, said her organization's support is based on the belief that it will help farmers, "but we won't have anything new to add until we see the final version of the bill."
It's the language in the final bill that is turning out to be tricky.
Rebecca Zietlow, a visiting professor of constitutional law at the University of Iowa, said the main problem with what lawmakers are considering has to do with prior restraint.
That is it infringes on free speech because it attempts to prevent that speech from happening even before it exists.
"The courts have generally said we should let the speech come out and then let the chips fall where they may," she said.
For example, nothing would prevent the farmer from going after the activist for libel if it turns out the activist had doctored or staged a recording. But to stop the activist from being able to report what is going on behind closed doors probably wouldn't fly.
Mark Kende, director of the Drake University Constitutional Law Center, agreed. He said businesses have several legal avenues to minimize the chance that someone would turn on a video camera in their facility, such as having them sign a clause upon their hire that they won't.
But, he said, there have been few instances where the courts have opted to keep someone quiet. National security, such as giving out troop movements, is one. Endangering the lives of people is another. But beyond those, the examples are few and far between.
"I don't think there's ever been a case specifically like this," Kende said. "There are a series of First Amendment cases that say you can't prohibit a category of speech, except the rarest of circumstances."