A New War on Whistleblowing?
WHY YOU SHOULD CARE
Because whistleblowing just got a lot more complicated in one U.S. state.
By Sean Braswell
In a film posted to YouTube in November, taken by a whistleblower at a Rockingham, North Carolina, farm that supplies chickens to the poultry giant Perdue Farms, workers are shown stomping the birds to death, kicking them like footballs and slinging them onto a truck. Perdue promptly thanked Mercy for Animals, the Los Angeles–based animal rights group that posted the video, for bringing the abuse to its attention, as well as local law enforcement for arresting one perpetrator and charging him with four counts of animal cruelty.
An end to an obvious abuse and a clear victory for the public good, right? Well, if those same acts of cruelty had been revealed this year, then we might be looking at an entirely different story in Rockingham. Instead of a pat on the back for their good deeds, some whistleblowers could be receiving a daily fine of $5,000 thanks to a controversial new North Carolina law — the Property Protection Act — that took effect on January 1.
After seeing whistleblowers reach blockbuster status — think WikiLeaks creator Julian Assange, as played by Benedict Cumberbatch in The Fifth Estate, or Edward Snowden, the subject of an Oscar-winning documentary in Citizenfour — the spotlight may now be dimming as others hesitate about coming forward, at least in some parts of the country. North Carolina’s law, which supporters say will protect property owners and businesses, doesn’t criminalize whistleblowing, but it does complicate the endeavor by allowing employers like a factory farm to pursue civil damages against individuals who, without permission or acting outside their duties as employees, enter the nonpublic areas of a property to collect data or record any video or photographic images.
The true test of the law’s impact will no doubt come with its enforcement.
The law’s opponents, including the state’s Republican governor, Pat McCrory, who tried to veto it, worry that it will deter employees and other whistleblowers from reporting abuses and violations — not just on factory farms but also in workplaces across the state. And while North Carolina’s meat industry is huge, its new policy goes beyond the “ag-gag” laws in other states that target undercover investigations of animal abuse. Typically, those laws make it illegal to shoot video or photos inside agricultural facilities alone, as in Montana and Kansas, or to lie on a job application, as in Utah and Iowa, in order to prevent activists from posing as employees.
But North Carolina’s law doesn’t stop at factory farms. As Vandhana Bala, Mercy for Animals’ general counsel, tells OZY, a day care center employee who shoots a video or film with her phone to document child abuse would be breaking the law. The same would be true, she says, of restaurant workers collecting photographic evidence of food safety violations, or nursing home employees seeking to expose abuse. “North Carolina’s ag-gag law sets a dangerous precedent for the rest of the country,” says Bala, “by giving businesses a powerful tool to stifle free speech and intimidate employee whistleblowers who would expose wrongdoing.”
Others add that handicapping whistleblowers could have an impact beyond workplaces, from consumer health and safety violations that go unreported to more literal downstream effects on the environment should, for example, a North Carolina hog farm’s swine waste seep into the state’s drinking water. Gray Jernigan, a staff attorney with Waterkeeper Alliance, worries about such consequences and that the fear of retaliation will silence “those who seek to expose unlawful, abusive, unsafe, unethical and unsanitary practices that may threaten the public’s health and safety.”
But could this be much ado about nothing? Supporters of the law claim opponents are misreading key parts, and that its true goal is to protect businesses from things like corporate espionage, intellectual property theft and breaches that affect data such as consumers’ credit card information. North Carolina Rep. John Szoka, a Republican who sponsored the bill, admits there’s often a “fine line between protecting businesses and First Amendment rights” but says that the law was carefully crafted to protect legitimate whistleblowers. And only whistleblowers who enter a property under false pretenses, or who exceed the access granted to them by the owner are liable under the law, says Republican Sen. Brent Jackson.
The true test of the law’s impact will no doubt come with its enforcement — or striking it down. Last year, an Idaho court declared the state law prohibiting undercover investigations of farming operations unconstitutional. But another federal court decision in North Carolina supports protecting employers from employees who misrepresent themselves on a job application or abuse their workplace access. Will shielding “good employees” be enough, or does whistleblowing by its nature require crossing some boundaries for the public good? North Carolina may help supply the answer in the coming years, and, depending on how things go, the state may end up serving either as a model or as a warning.
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- Sean Braswell