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Coalition Files Lawsuit Against Idaho Ag-Gag Law That Targets Journalism, Whistleblowing & Speech

You could now be prosecuted if you took a photo of a concentrated animal feeding operation in Idaho. (US government photo)

A coalition of groups and journalists are challenging a law passed in Idaho, which makes it possible for anyone who secretly films or records animal abuse to be jailed for up to a year.

In February, Idaho became the seventh state to pass an ag-gag law—a farm secrecy statute aimed at political speech on industrial agricultural production.

Organizations like the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, American Civil Liberties Union of Idaho and the Center for Food Safety, along with CounterPunch and journalist Will Potter of filed a lawsuit against the law, which they consider to be unconstitutional.

The filed complaint argues that the law “criminalizes efforts to document criminal behavior in the workplace.” It makes “capturing images or audio, even when a person is otherwise lawfully permitted to be at the location,” a criminal act.

It preferences industry speech over political speech. In fact, the statute was drafted by a lawyer for the Idaho Dairyman’s Association.

The legislative history indicates this law was proposed for the purpose of punishing animal rights groups and to curtail a form of political speech of great public interest.

According to the complaint, “more than eighty undercover investigations at factory farms in the United States” have occurred in the last decade. They would be criminal under Idaho’s new law.

The coalition further argues that the a “plethora of protected speech that is not even related to animal welfare, including worker safety, food safety, labor laws, and other types of agricultural industry misconduct,” would be criminalized in violation of the First Amendment. Employees, journalists or any person with particular knowledge who expresses concern about conditions under which food is processed could potentially be accused of violating this law.

The animal suffering that investigations have been able to expose includes instances of workers kicking pigs in the head or spray painting them in the eyes. It includes “stomping and throwing chickens and turkeys like footballs.” It includes “smashing piglets’ heads against concrete floors.” It also includes “beating and sexually assaulting pigs with steel gate rods and hard plastic herding canes.”

“These investigations, as well as the subsequent media coverage, have led to food safety recalls, citations for environmental and labor violations, evidence of health code violations, plant closures, criminal convictions, and civil litigation,” recounts the complaint. “Such investigations have resulted in thousands of news stories in the past year alone.”

Corporate interests behind the law aim to stifle a great tradition of muckraking journalism on agricultural production in the United States, which goes all the way back to Upton Sinclair’s The Jungle. But sixteen journalistic organizations have submitted a brief showing support for the lawsuit in order to defend the news gathering process and prevent journalists from being criminalized.

The Reporters Committee for Freedom of the Press, the Salt Lake Tribune, the Utah Headliners Chapter of the Society of Professional Journalists (“SPJ”), the Association of American Publishers, Inc., California Newspaper Publishers Association, First Amendment Coalition, National Press Photographers Association, National Public Radio, Inc. and others oppose the law.

“By criminalizing audio and image recording at meat-processing plants, the Utah ‘ag gag’ statute weakens food safety guarantees at the same time it stifles free speech,” the groups’ brief argues. “Journalists and organizations that conduct investigations into meat-processing facilities have long been credited with advancing the safety of the meat the public consumes.

“Federal inspection has drastically improved the safety of the meat in the past century, but problems within the inspection system leave a gap in food safety that journalists and animal rights organizations have filled. While no journalist has the right to trespass on private property, the overbreadth of the Utah statute poses a substantial risk of criminalizing lawful – and constitutionally protected – news gathering activity,” they add.

Noted in both filings to the court is how the law essentially creates the crime of “interference with agricultural production.” This makes certain acts more illegal because trespassing and fraud are already criminal activities.

The journalistic organizations clearly articulate:

…[T]hose who seek to inform the public about abuses are more likely to be prosecuted simply because they sought to document the actions they are revealing. Because unsubstantiated allegations can lead to libel suits and charges of interference with business operations, it seems particularly disconcerting that the state would seek to criminalize the act of gathering documentary evidence of a violation.

The whistleblowers that come forward with information about abuses play an important role in a civil society, and the journalists rely on their information – including their documentation of that information through audio and video recordings – to help the public hold the companies and government regulators accountable as they undertake actions that affect the safety of the food we eat…

Agribusiness in Idaho greatly supported this bill, the genesis of which can be traced back to the corporate bill mill known as the American Legislative Exchange Council.

The Idaho ag-gag law’s sponsor, Sen. Jim Patrick, expressed his opinion that “extremist animal activists” are “comparable to marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”

Even if it were true that “extremist animal activists” were committing similar acts, Idaho would already have laws intended to protect private property that could be used to prosecute these “extremists.” There would be no need to press for a broad statute that could criminalize speech (unless the bottom line of your business depends on deterring speech that will expose horrific animal abuse and hazardous practices in food production).

The state’s dairy industry still has not gotten over what Los Angeles-based Mercy for Animals did in 2012. An undercover operation in Bettencourt Dairy took video of animals that were being abused and sexually molested. Dairy employees were charged and convicted of animal abuse. This led to accountability and justice, but agribusiness maintains the investigation was intended to hurt the dairy industry, which is why they pursued this vindictive ag-gag legislation.

Remarkably, the complaint notes, “About one week before the ag gag bill was introduced in the Idaho legislature, the Idaho Dairymen’s Association began instructing its members to coerce employees to waive their constitutional rights to speak freely by requiring workers to sign agreements that prohibit them from disclosing to the government or the public any information about unsafe, dangerous, or abusive conditions or conduct on Idaho dairies and other agricultural facilities.”

“No other statutes in Idaho” target a “specific category of whistleblowing or investigative journalism. Undercover investigations of, for example, financial institutions or medical providers are still permitted.” But, under this law endorsed by agribusinesses, far fewer undercover investigations, which could result in “positive legal outcomes” and create debate about choices citizens make about food, are likely to be undertaken because investigating abuse could lead to a criminal conviction and time in prison.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."