Arkansas Ag-Gag

Arkansas Ag-Gag

Arkansas’ Ag-Gag statute is modeled after the North Carolina statute, but it makes a few tweaks to try to protect it from being overturned as unconstitutional. The Arkansas Ag-Gag law provides an employer liquidated damages against any person who “exceeds the[ir] authority” in a “nonpublic area” of “commercial property.” The statute makes clear that the aim of this prohibition is to squelch speech, particularly undercover investigations.

Moreover, the legislative history makes clear the aim of the law is to silence speech by advocacy groups that seek to conduct undercover investigations of agricultural facilities. The Arkansas statute’s wrinkle is that it exclusively provides for a civil remedy, and prohibits the state from enforcing that remedy to protect any of its property, which the legislators insisted would protect the statute from challenge because it did not authorize state action.

The only rationales offered in support of the law were to suppress speech and to protect businesses from corporate espionage, but Arkansas already has a robust trade secrets statute that provides for all of the relief available under the Ag-Gag law if someone steals corporate secrets, as well as common law remedies. Thus, to the extent the law regulates speech it fails every level of scrutiny. Moreover, because it regulates so much speech, it is overbroad and thus should be declared unlawful in its entirety.