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Cathie Rowand | The Journal Gazette
Sen. Travis Holdman, R-Markle, has resurrected failed legislation that would criminalize undercover whistleblowing activity on work sites.

Loosened gag still too tight

Prosecuting Hoosiers for photographing or videotaping embarrassing or illegal activity at industrial operations would be, unfortunately, easier under a bill passed in the state Senate on Tuesday. The bill does little to protect citizens or business owners acting in good faith but instead shields from accountability operations engaged in bad business practices.

Senate Bill 373, authored by Sen. Travis Holdman, R-Markle, is comparable to a spate of bills cropping up all over the country linked to the conservative American Legislative Exchange Council. The Indiana legislation applies to all industrial sectors, but it is targeted to thwart undercover investigations of factory farms by environmental advocates and animal abuse activists.

Holdman proposed similar legislation last year, but Senate leaders had the good sense to let that bill die.

“I’ve heard from a number of constituents in the manufacturing and agricultural sectors who were concerned with trade secrets,” Holdman said. “Those people (the investigators) would gain access surreptitiously and release it in a way that would harm the business. The same goes for farms.”

He said a farm owner told him about a person employed for a short time who released video on the Internet that had been spliced and edited.

“I grew up on a farm,” Holdman said. “The truth is, if you eat meat, those animals have to be harvested in some fashion, and it’s not necessarily a pretty picture. We don’t want people to take a picture and use it out of context to harm the business.”

The bill prohibits photographing or videotaping on a property without the owner’s consent. It does not prohibit documenting activity while standing on public property.

“Clearly, if you are documenting something illegal, you are not going to get the owner’s consent,” said Kim Ferraro, staff attorney for the Hoosier Environmental Council.

The legislation, which now goes to the House, appears to be unnecessary. Current laws already protect property owners from trespassers and companies from defamation.

An amendment was added that offers some protection for whistleblowers who relinquish evidence of wrongdoing to law enforcement or regulatory agencies. The amendment helps, but it doesn’t go far enough. Hoosiers still could face prosecution if they share the evidence with journalists or the public.

Sen. Karen Tallian, D-Portage, rightly questioned whether the bill violates Indiana’s constitutional press freedom protections.

Ferraro of the environmental council noted that while she is not a constitutional law expert, “To me, it borders on a violation of free speech. To me it just doesn’t feel right that we would limit the ability to share information with journalists.”

Erin Huang, state director for the Humane Society of the United States, said: “They are trying to add exemptions to make it more agreeable. The only thing the amendment really does is make the intent of the bill more clear, and that is to hide worker abuse, food safety issues and animal abuse. It’s not just about animal welfare. It’s about public safety and our food.”

Huang points to the many instances in which whistleblowing employees, undercover exposés and investigative journalists have brought dangerous situations to light in the best interest of public safety. Indeed, if a business were operating responsibly, it should not want this bill to pass. It presumably would want the bad members of its industry drummed out.

This bill makes it less likely the public will ever hear about operations that are engaged in bad business practices that could contaminate food supplies, pollute the environment or equate to animal abuse or unfair labor practices.

Ferraro said: “This isn’t about being anti-agriculture. Every industry has to conduct itself within some standards. This is about making sure industry is conducted safely, and some in this industry want not to be held accountable.”

Businesses, including large factory farms that are operating responsibly, don’t need – nor should they want – this bill to pass.