FRANKFORT, Ky. – In a 30 to 6 vote, a bill that would prohibit recordings of concentrated animal feeding operations, commercial food manufacturing or processing facilities passed the Kentucky Senate Feb. 15.

Introduced by Kentucky Republican Sen. John Schickel, Senate Bill 16 would criminalize unauthorized surveillance and operation of unmanned aircraft (drones), video or audio recording devices, or photography of agricultural facilities without written permission from business owners.

Under the bill, which moved to the State Senate floor after the Committee on Agriculture passed it last Tuesday, recording of such agricultural facilities without written consent of the owner is classified as a class B misdemeanor, and carries a penalty 90 days in jail, a $250 fine, or both.

Kentucky Sen. Jason Howell, R-Murray, said the bill protects the state’s most profitable agriculture industries, like poultry.

“Some of the animal rights groups will go over, they will hover over production facilities, feedlots, to try to get information that they can manipulate to work against our animal production industries,” he said.

He added facilities have “come under fire a lot from well-meaning activists that interrupt operations” and the bill was “narrowly tailored” to protect these facilities.

Graham Hall, Tyson Foods government affairs manager, told lawmakers, “Unauthorized drones could hinder our ability to continue business. It could put our employees in danger. It could endanger our live animals. And we have a couple of instances that this has happened before.”

Kentucky Sen. Cassie Chambers Armstrong, D-Louisville, however, told lawmakers, “My major concern with the bill is the way that it is so broad that it criminalizes something like taking a picture on your cell phone at work of something that could be a serious risk to your health and well being.”

Audrey Ernstberger, Kentucky Resources Council attorney and lobbyist in Frankfort, who also opposed the bill, testified to lawmakers, “The committee substitute presents numerous additional problems with the lack of definition and lack of intent to harm, reaching conduct that could include taking a picture of your child while at a petting zoo, or using your cell phone at a riding stable open to the public.”

Jennifer Zwagerman, Drake University Agricultural Law Center director and associate professor of law in Des Moines, Iowa, told Farm World, “We’ve seen several of these types of laws proposed, passed and challenged on free speech grounds across the country.

“Some states, like Iowa, had several versions struck down as unconstitutional before a recent appeal holding otherwise,” she said. “The argument is that it’s a blanket prevention of someone exercising his or her right to engage in activities, like photography and recording, that are generally protected by the First Amendment.

“The argument is that there is a public interest in allowing whistleblowers or employees or visitors of any type of an agricultural operation to share this type of information to expose concerns, or illegal or unethical activity,” she added.

She said stopping whistleblowers or other types of undercover investigations is often one of the main reasons these types of bills, such as Senate Bill 16, are proposed.

“There is a public concern when it comes to ensuring safe production of food, a public concern in ensuring animal welfare laws are followed, and a public concern in bringing attention to those who engage in wrongdoing or to bring attention to facilities that do not meet minimum standards as required by law, who don’t properly train or discipline employees,” she said.  

“Free speech means that we can’t prevent someone from speaking as the government just because we don’t like what they have to say, that we disagree, or that we want to provide some sort of special protection to an industry that we support,” she added.

She said Kentucky is not the first state to propose this type of law, which does fall under the broader ‘ag-gag’ legislation umbrella. (Ag-gag laws are anti-whistleblower laws that apply within the agriculture industry.)  

The bill now moves to the Kentucky House of Representatives for consideration.