Whenever whistleblower cases are in the spotlight, one question inevitably comes up: Why are some whistleblowers protected from retaliation and others not? Ever since whistleblowing protection laws were first instituted, the answer has never been completely straightforward. A recent uptick in anti-whistleblower legislation at factory farms draws unsettling parallels with the tobacco industry’s infamous attempts to suppress whistleblowing many years ago.
Big Tobacco’s greatest foe
In the mid-90’s, former Brown & Williamson employee Jeffrey Wigand came to CBS with detailed information regarding widespread Big Tobacco fraud. Wigand claimed that B&W had deliberately obscured research about nicotine’s addictive and deadly effects for decades and had lied about the issue before Congress. He claimed that his superiors at B&W had even suggested cigarettes were “nicotine-vehicles,” and that tobacco companies were deliberately intending for their customers to become life-long addicts.
Just before the interview was set to air, CBS executives pulled it in fear of facing a multi-billion dollar lawsuit, as ABC already had for exposing similar claims about Philip Morris. Years later, there have also been suggestions that the piece was axed because the son of CBS Chairman Laurence Tisch was a major player in the tobacco industry.
Wigand, CBS worried, had breached his confidentiality agreement with the tobacco company by coming forward with this information. Any complicity in supporting or publicizing his claims could therefore involve the network in Wigand’s legal battle.
CBS eventually aired the feature, but only after Wigand’s identity was leaked. The Wall Street Journal then published court documents pertaining to the case, therefore removing any legal implications for the network. For breaching his confidentiality agreement, Wigand allegedly faced severe retaliation from B&W, including multiple intimidation attempts, a public smear campaign, a massive lawsuit and death threats.
Wigand’s testimony enabled several U.S. states to recover a $368 billion settlement from Big Tobacco. This settlement addressed the industry’s alleged complicity in the billions of dollars in Medicaid costs incurred by cigarette use.
The lawsuit against Wigand was dropped as a result, but the harrowing ordeal he faced raises important questions about how a company could instigate such vicious retaliation attempts—and legal action—against a former employee who was simply telling the truth.
Since that time, much has changed to prevent and penalize corporate retaliation attempts, but a recent corporate-backed law enacted in North Carolina highlights a persistent need for greater whistleblower protections.
Big Ag takes a page out of Big Tobacco’s book
Whistleblower protections have become stronger and more specific in many industries like health care and finance, but ethically questionable legislation in North Carolina has sparked a new conversation about how everyday citizens can safely expose corporate corruption and fraud.
The truth about factory farms has been exposed in documentaries like Food Inc. thanks to brave farmers, insiders and journalists willing to face relentless industry lobbyists and multi-billion dollar corporations in the pursuit of justice.
Many people have by now seen videos of animal brutality in factory farms, but to summarize, the grievances commonly voiced about these farms include:
- Extreme and systemic abuse of animals in pursuit of higher profits
- Community water pollution caused by farms’ toxic waste runoff
- Unsanitary conditions that increase the risk of disease for consumers of factory farm products
- Dangerous health and safety conditions for farm workers
Factory farms are responsible for over 99% of America’s farm animals. For such a massive system to be so brutal and broken is both unethical and unsustainable.
Some states have introduced legislation over the years to make farming more ethical, but anti-cruelty laws do not apply to the treatment of animals on factory farms in every state.
Ag-gag laws
While legislation protecting factory farm workers and animals is not nearly as strong as it should be, laws that protect the corporations who own factory farms have found far greater traction.
Ag-gag laws were first introduced to prohibit undercover activists or journalists from blowing the whistle about inhumane working conditions, animal abuse and other unethical behavior on factory farms.
The first such law, HF 589, was passed in Iowa in 2012. The law made it illegal not to truthfully answer questions about affiliation with animal rights groups, news outlets or labor unions on a farm’s job application.
Iowa’s law set a dangerous precedent; soon enough, agricultural corporations pushed ag-gag laws in other states around the country; they are currently active in eight. The most recent went into effect on January 1st of this year in North Carolina, a state that contains over 50,000 farms.
There has been significant public outcry about ag-gag laws since they were introduced, and North Carolina factory farms have already been the subject of studies about severe water pollution and diminished air quality in the state.
After two previous defeats, Big Ag backers in North Carolina changed their approach to ensure that the ag-gag law would pass. Instead of prohibiting a set of whistleblowing activities just on factory farms, they made it punishable by civil penalties statewide and industry-wide.
The law, branded as the “Property Protection Act,” enables companies to sue any individual who takes photos or recordings on private premises, or takes data from those premises, without written consent from the corporation. It also applies to any individual who provides compensation for the footage or data. The penalties include damages in the amount of $5,000 per day, as well as financial liability for any legal action pursued by the corporation in question.
Concerned employees can still report unethical activity through internal channels, but internal reporting practices in the factory farm industry have clearly not proven themselves to be reliable, hence the prevalence of whistleblower reports and exposé footage.
The repercussions of this law could be drastic. As its many critics have pointed out, daycare and nursing are just two of the industries particularly vulnerable to its restrictions.
Breaking the cycle
If sustained, this ethically dubious legislation could encourage the type of legal—and possibly personal—corporate retaliation that Big Tobacco opponents like Wigand faced years ago. Regardless of whether its backers admit this intention, the law stands in the way of farm workers and concerned citizens attempting to speak up about injustice. Whether it’s Big Tobacco or Big Ag, major corporations shouldn’t be able to sustain unethical practices without being held accountable.
Curtailing the abilities of potential whistleblowers is decisively a step in the wrong direction. Fortunately, widespread public concern has prompted small victories against these types of laws.
Last August, a judge in Idaho ruled a prospective ag-gag law in the state unconstitutional on the basis that it violated the First Amendment. Although only little over a month has passed since North Carolina’s ag-gag law came into effect, it has already prompted a federal lawsuit alleging free speech violations.
The way that whistleblowing cases are publicized plays a significant role in whether and how relevant regulations evolve. Morgan & Morgan Whistleblower Attorney James Young urges the legal community and the media to raise more awareness around whistleblowing cases in the industries that often go ignored.
“[While] the media tends to focus on the stories like Snowden and WikiLeaks, they often overlook important whistleblowing by people involved in drug manufacturing, contaminated water like Flint Michigan, horrible treatment of veterans by the VA, among others. Attorneys for whistleblowers must endeavor to publicize and personalize the important cases and people they work with,” Young suggests.
These efforts make a tremendous difference in stopping corporate interests from ruining individual and community lives. Although Wigand’s decision to speak up saved lives, it came at great cost to his own; this doesn’t need to happen again. With greater public awareness and stronger legislation, we have a prime opportunity as a nation to ensure that whistleblowers are far more protected now than they were 20 years ago.
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