Public Interest

Ag-Gag Law Falls In Federal Court

Major victory for animal rights groups.

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Several months ago, I wrote that “ag-gag laws are lawsuit fodder”; last week one such lawsuit proved meritorious. Recall that ag-gag laws are designed to prevent individuals from taking and publicizing recordings of agricultural operations, often by making it a crime to do either. They’re also often obviously unconstitutional. In my previous post, which focused on Wyoming’s particularly broad ag-gag law (a law that criminalizes “collecting resource data” from private property without permission), I suggested that “we can all brainstorm ways the law is likely unconstitutional.” I also noted that “Idaho’s somewhat more circumspect ag-gag law is winding its way through the courts now.”

Well, in a development that should shock no one, Idaho’s ag-gag law turned out not to be circumspect enough to withstand a constitutional challenge — a federal judge has struck it down citing violations of the First and Fourteenth Amendments. Curious? Read on for details.

Apparently Idaho’s ag-gag law had its genesis in an August 2012 investigation of Idaho’s Bettencourt Dairies by the group Mercy For Animals. The group managed to place an undercover investigator in the dairy, and the immediate result was a horrific video of actions that I think everyone can agree are objectless abuse, plain and simple; you can see for yourself here if you’re so inclined. Consequences unfolded: five dairy workers were fired, and three of them were charged with misdemeanor animal cruelty.

“But,” writes veteran food-and-ag reporter Tom Philpott of Mother Jones, “behind the scenes, Idaho’s $6.6 billion dairy industry quietly began working with its friends in the state legislature on a different response.” In the more value-neutral words of Chief Judge B. Lynn Winmill of the District of Idaho, in his decision striking down the law, “the Idaho Dairymen’s Association, a trade industry organization that represents every dairy farmer and producer in the state, responded to the negative publicity by drafting and sponsoring a bill that became Idaho Code § 18-7042.”

Idaho Code § 18-7042 created the crime of “interference with agricultural production” and criminalized a host of activities including “enter[ing] an agricultural production facility that is not open to the public and, without the facility owner’s express consent… mak[ing] audio or video recordings of the conduct of an agricultural facility’s operations.” That language would criminalize not only the type of undercover operation that gave rise to the new law but also whistleblower activity by legitimate employees. And the penalties for committing “interference with agricultural production” included not only fines and jail time but also mandatory “restitution” in the amount of “twice the value of the damage resulting from the violation of this section.” Thus if a whistleblower video resulted in a boycott, the Idaho law technically would require the whistleblower to pay twice the amount of any sales lost to the boycott — quite possibly from behind bars.

Needless to say, the law gave rise to a swift legal challenge. It was signed into law on February 28, 2014, and a coalition of organizations and journalists filed and announced a lawsuit on March 17, 2014.

The state quickly moved to dismiss the coalition’s broad-ranging complaint, which the state’s supporting memorandum characterized as “prolix.” The state suggested the lawsuit was nothing more than a misguided attempt to take down an ironclad statute that, rather than posing a broad threat to speech, actually “proscribes quite specific forms of conduct” in order to protect private property rights.

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The court, though, didn’t buy the state’s argument. While its order on the motion to dismiss did whittle down the complaint somewhat, it left intact the complaint’s core claims: that Idaho’s statute constituted content-specific regulation of speech in violation of the First Amendment and that the statute singled out animal rights groups in violation of the Equal Protection clause of the Fourteenth Amendment. The court also left intact the plaintiffs’ less glamorous preemption claims.

Some time later, lead plaintiff Animal Legal Defense Fund filed a motion for summary judgment, which, last week, the court granted. Specifically, the court held that the Idaho statute violated both the First and Fourteenth Amendments. It was a content-specific restriction on speech that was not narrowly tailored to serve a compelling state interest. In fact, the court held that the state’s professed property-rights interest was not compelling given strong countervailing public policy arguments — “Given the public’s interest in the safety of the food supply, worker safety, and the humane treatment of animals, it would contravene strong First Amendment values to say the State has a compelling interest in affording these heavily regulated facilities extra protection from public scrutiny.” Neither was the statute narrowly tailored to protect property rights: “The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.” And on top of that, the statute singled out a discrete group for harsh treatment for no other reason than animus against that group: “ALDF has shown that enactment of § 18-7042 was animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry, and the law furthers no other legitimate or rational purpose.”

None of these conclusions appeared to be a particularly close call; the phrase “abundant evidence” appears at one point.

The Idaho Dairymen’s Association has apparently urged the state to appeal to the Ninth Circuit. But it’s probably in the state’s interest to stop throwing good money after bad — and paying to defend a plainly unconstitutional law, especially one that’s also poor public policy, is certainly a bad way to spend public funds. (If you’re not convinced that the constitutional issues are that clear-cut, note that the plaintiffs’ press release included a quote from Erwin Chemerinsky, who probably wrote your ConLaw textbook, calling the Idaho statute “deeply distressing” and noting that he was “confident that this law will be struck down.”)

However the appeal decision goes, for now I offer congratulations to the legion of public interest lawyers (find their names at the top of the complaint) who secured this major victory in the District of Idaho.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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