Opponents say Kentucky 'ag gag' bill could stifle free speech, limit whistleblowing

FRANKFORT — A bill advancing through the legislature pits the state’s meat processing industry against a diverse group of opponents that ranges from photojournalists to animal rights groups.

Senate Bill 16, sponsored by Sen. John Schickel, R-Union, amends Kentucky’s criminal trespass law, first enacted in 2018. That law sought to protect “key infrastructure assets” like energy and drinking water facilities from trespass and from surveillance by unauthorized drones.

SB 16 expands on that effort but goes much further, opening the door for stifling free speech and removing a crucial way for news organizations and advocates to monitor corporate activities, opponents say.

SB 16 would add commercial food manufacturing or processing facilities and animal feeding operations to the list of protected infrastructure assets. It would make unauthorized recording or photography, by drones or otherwise, at those facilities a misdemeanor. A first offense would be a misdemeanor punishable by up to 90 days in jail and/or a $250 fine for the first offense.

The purpose of the bill is to protect agricultural companies like Tyson Foods from drone surveillance by advocacy groups, Schickel said during a March committee hearing.

Tyson Foods government affairs manager Graham Hall said during the March hearing that such incidents happen “very frequently” and that recently a large drone was reported over a building at the company’s Robards facility. He pointed to incidents in other states when news organizations or animal rights groups have tried to collect data about the company’s operations using drones.

“The problem is that there's unauthorized drone access over our facilities ... and a narrative can be created that's problematic for us,” Hall said.

Tyson employs about 4,000 people in Kentucky, said Ronald Pryor, a lobbyist for the company who joined Hall and Schickel in presenting the bill to House and Senate committees. Schickel worked with the head of global security for Tyson in drafting the bill, Pryor said.

The bill also has the backing of the Kentucky Poultry Federation and the support of Democratic Sen. Robin Webb of Grayson, who is a cosponsor.

From the start of 2023 to the end of last month, Tyson has spent over $42,000 on lobbying, and the Kentucky Poultry Association has spent over $28,000, according to records filed with the Legislative Ethics Commission.

The Senate passed the bill, and earlier this month a House committee also approved the measure. The bill would need a House floor vote followed by an additional Senate floor vote before it can be sent to Gov. Andy Beshear for consideration.

‘Among the most extreme we have seen’

The bill would violate free speech rights, a number of groups told The Courier Journal.

“We're very concerned about this bill, which would purport to make it a crime to engage in basic newsgathering activities if there are stories related to food processing companies and their facilities,” said Michael Abate, an attorney for the Kentucky Press Association who also represents The Courier Journal.

The addition of the animal processing industry to a law that is focused on protecting key infrastructure is also problematic, Abate said. “It’s a misuse of laws that are to protect physical assets in order to favor a group that doesn't want any more scrutiny of its operations.”

But the bill’s supporters say the food processing industry is critical to national security. Pryor said the federal government designated food manufacturers as part of the critical infrastructure during the COVID pandemic.

Alicia Calzada, deputy general counsel for the National Press Photographers Association, said her organization tracks similar bills nationwide and Kentucky’s version is “among the more extreme … we have seen.” The bill could criminalize the publication of a photograph of animal feeding operations, which constitutes “a prior restraint that violates the First Amendment,” she said.

The American Civil Liberties Union of Kentucky also opposes SB 16 because it would "criminalize otherwise protected First Amendment activity," said Corey Shapiro, the group's legal director.

Bills like SB 16 have been dubbed "ag-gag" measures by opponents and deemed unconstitutional in at least five other states: North Carolina, Kansas, Idaho, Utah and Wyoming.

But sponsor Schickel said he is not worried the bill will not hold up in court. He said in March that the Kentucky attorney general’s office has vetted the bill “to make sure it would pass constitutional muster.”

More: 'A giant loophole': Despite changes, open records bill still problematic, advocates say

Criminalizing whistleblowing?

Other advocacy groups are concerned that SB 16 will make it harder for people to document wrongdoing.

SB 16 could criminalize whistleblowing about working conditions, the conditions of animals or environmental hazards, said Audrey Ernstberger, staff attorney and lobbyist for the Kentucky Resources Council.

The Animal Legal Defense Fund, a national animal rights group, also opposes the measure for similar reasons, the group’s Senior Staff Attorney Caitlin Foley told The Courier Journal.

Unions are concerned about worker protections if the bill passes.

"It's not always the case where the employer or the company ... has your safety in their best interests," said Kentucky AFL-CIO President Dustin Reinstedler. "We worry that if you take away an employee's ability to document dangerous situations ... it could result in pretty bad practices."

Hall, the Tyson representative, rejected that concern. He said the company allows workers to use their cell phones at work and therefore the use would be authorized, although it does confiscate visitors’ phones while they are on site.

Hall also said the measure is needed because drones flying over the facilities “could cause undue stress on the animals … and could cause stress on our employees, as well.”

Reach Rebecca Grapevine at rgrapevine@courier-journal.com or follow her on X, formerly known as Twitter, at @RebGrapevine.

This article originally appeared on Louisville Courier Journal: Kentucky halting drones over food plants worries free speech advocates