Document Type
Article
Publication
Georgetown Environmental Law Review
Year
2022
Citation Information
Anthony B. Derron, Trespass Plus: Ag-Gag and the Right to Exclude, 35 Georgetown Env’t L. Rev. 1 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1693.
Abstract
The recent proliferation of agricultural anti-whistleblower legislation, or "ag-gag," has finally given the right to exclude the weight that property theory claims it deserves. By offering hefty fines and imprisonment to would-be agricultural trespassers, ag-gag is one of the few legal frameworks to treat the right to exclude seriously. Scholars and judges are taking notice. Given the significant environmental harms that agriculture causes – nearly one-third of all greenhouse gas emissions – and the conspicuous First Amendment concerns, it’s no wonder. But what commentators aren’t noticing is just how radical ag- gag is when compared to the legal regimes of which it purports to be a part.
Ag-gag's extremism is two pronged. First, ag-gag rewrites the history of agricultural and animal law by suggesting that investigations into, citizen enforcement of, and education about agriculture's harms is something new. In reality, citizens have been the primary enforcers of animal law since the mid-1800s, and the investigations they made led to the foundation of agricultural regulatory programs still in place today. Second, it weaponizes the right to exclude, which has always been strict in theory and nimble in practice. Often hailed as the fundamental principle of property, and the object of trespass, the right to exclude is almost always thrown aside when stood up against some sort of socially beneficial encroachment on private property. Ag-gag does the opposite, elevating the right to exclude to the primary determinant of the trespass frame-work. This promotion is unsettling, and investigating why leads to the conclusion that we don't care all that much about the right to exclude. If we did, exclusion's supremacy in ag-gag wouldn’t be so striking. Instead, this Article contends that what we do care about are secondary harms, specifically, the right of pursuit.
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