Judge Won’t Stop Lawsuit Against Idaho Ag-Gag Law, Agrees It Restricts Protected Speech
In February, Idaho became the seventh state to pass an “ag-gag law” or a farm secrecy statute aimed at political speech on industrial agricultural production.
The Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), American Civil Liberties Union of Idaho and the Center for Food Safety, along with CounterPunch and journalist Will Potter of GreenistheNewRed.com, filed a lawsuit against the state in March. They all alleged the law is unconstitutional.
Chief US District Judge B. Lynn Winmill denied the state of Idaho’s motion to dismiss the lawsuit, and in his order [PDF], Winmill acknowledges that the law “raises First Amendment concerns because it restricts protected speech.”
“The state defends the provision as a restriction on conduct, designed to protect agricultural production facilities against trespass and conversion,” Winmill writes. “The court acknowledges that the state has a real and substantial interest in protecting private property. But the First Amendment requires more than the invocation of a significant government interest; it requires that the restriction’s benefits be balanced against the burden on protected speech.”
“The state therefore must justify a need to serve its interest in protecting private property through targeting protected speech. Laws that restrict more protected speech than necessary violate the First Amendment.”
The issue of whether the law restricts more speech than necessary led Winmill to not dismiss the First Amendment claim.
The claim that the law violates the Equal Protection Clause of the Constitution survived too. Winmill apparently found that allegations that Idaho legislators “acted with animus against animal rights activists” in passing the law were credible.
Furthermore, Winmill concludes the law presented ALDF with the “immediate dilemma of choosing between complying” with the law or “risking prosecution under the challenged provision by engaging in whistleblower conduct it says federal law explicitly encourages and protects.”
A section of the law makes it a crime to gain access and obtain records from or employment with agricultural production facilities through “force, threat, misrepresentation or trespass.”
One of the more compelling sections of Winmill’s ruling is where he explains the state is wrong to suggest that criminalizing a person for using “misrepresentations” does not target protected speech. “Misrepresentations” could be protected speech.
A protected union activity known as “salting” is a prime example of the legal use of misrepresentation to gain access to a worksite. Because union organizers are often denied access to worksites, unions have turned to salting, “which is to send paid union representatives to apply for positions which, if secured, would enable them as employees to solicit support among coworkers for union representation.” A salter frequently lies about or omits his or her union affiliation on an employment application because identifying oneself as a union organizer may preclude an offer of employment. Salting is not only legal but is actually protected activity under the National Labor Relations Act. Because salting is protected union activity, presumably the lies a salter tells to obtain employment would be protected speech – and not a trespass. This example squarely demonstrates that the misrepresentation provisions do encompass protected speech.
The law includes a restitution provision, which “mandates” an “award for double the loss including ‘direct out of pocket losses or expenses’ related to any violation of the statute.”
Appropriately, Winmill recognizes this as a “content-based restriction” that makes it possible for agricultural operations to “collect the same damages” they would in a libel action without having to satisfy “the constitutional defamation standard, which the Supreme Court has expressly prohibited.”
He notes that the more “successful an activist is in mobilizing public opinion against a facility by publishing a video or story critical of the facility the more the activist will be punished.”
“The law only prohibits unauthorized filming, so it is more likely that those who wish to portray the agricultural facility in a positive light will be allowed to film while those critical of the industry will not. By, in effect, privileging speech that is supportive of the agricultural industry,” the section of the law “impermissibly discriminates on viewpoint,” Winmill argues.
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. It was actually drafted by a lawyer for the Idaho Dairyman’s Association.
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.
According to the lawsuit, “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.