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Appeals Court Rules Against Idaho’s Unconstitutional Ag-Gag Law Aimed At Suppressing Journalists

In a decision upholding the First Amendment and tradition of investigative journalism, the Ninth Circuit Court of Appeals ruled key parts of an Idaho “ag-gag” law, which permits state authorities to jail anyone who conducts undercover investigations and secretly records animal abuse, are unconstitutional.

Idaho passed an “ag-gag” law or a farm secrecy statute aimed at political speech about industrial agricultural production in 2014. It became the seventh state to adopt such a law.

The law was an industry response to an undercover operation at Bettencourt Dairy that led to the recording of abused and sexually molested animals. Dairy employees were charged and convicted of animal abuse.

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 that same year.

In 2015, a federal district court found the law violated the First Amendment and rights to equal protection under the Constitution. The state appealed.

“We conclude that Idaho’s criminalization of misrepresentations to enter a production facility and ban on audio and video recordings of a production facility’s operations cover protected speech under the First Amendment and cannot survive constitutional scrutiny,” the appeals court declared [PDF].

The court added, “Idaho is singling out for suppression one mode of speech—audio and video recordings of agricultural operations—to keep controversy and suspect practices out of the public eye.”

“The district court aptly noted that ‘[t]he recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.'” Therefore, a clause against recordings cannot “survive First Amendment scrutiny and is therefore unconstitutional.”

“The Ninth Circuit’s decision sends a strong message to Idaho and other states with ag-gag laws that they cannot trample civil liberties for the benefit of an industry,” Animal Legal Defense Fund executive director Stephen Wells stated.

The appeals court acknowledged the genesis of a law targeting protected speech stemmed from an undercover investigation by Mercy For Animals that uncovered gruesome abuse and cruelty against animals.

“Investigative journalism has long been a fixture in the American press, particularly with regard to food safety. In the early 1900s, Upton Sinclair highlighted conditions in the meat-packing industry in ‘The Jungle,’ a novel based on his time working incognito in a packing plant. This case also originates in the agricultural sector—a secretly-filmed exposé of the operation of an Idaho dairy farm,” the court recounted.

“By all accounts, the video was disturbing: dairy workers were shown dragging a cow across the ground by a chain attached to her neck; twisting cows’ tails to inflict excruciating pain; and repeatedly beating, kicking, and jumping on cows to force them to move.”

“After the film went live on the internet, both the court of public opinion and the Idaho legislature responded, with the latter eventually enacting the Interference with Agricultural Production law. That legislation—targeted at undercover investigation of agricultural operations—broadly criminalizes making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the facility without the owner’s consent. Statutes of this genre—dubbed by some as ag-gag laws—have been passed in several western states,” the court additionally noted.

The appeals court eviscerated Idaho’s arguments in defense of a provision that allows authorities to criminalize false statements made to access agricultural production facilities. “Unlike lying to obtain records or gain employment—which are associated with a material benefit to the speaker—lying to gain entry merely allows the speaker to cross the threshold of another’s property, including property that is generally open to the public,” the appeals court argued.

“The hazard of this subsection is that it criminalizes innocent behavior, that the overbreadth of this subsection’s coverage is staggering, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists.” The court detailed how lawmakers discussed the impact of investigative journalism when advocating for the unconstitutional law:

…“One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.

As the appeals court asserted, “The focus of the statute to avoid the ‘court of public opinion’ and treatment of investigative videos as ‘blackmail’ cannot be squared with a content-neutral trespass law.”

If the state were permitted to target journalists and investigative reporters with the statute, they would face enhanced penalties. Violating Idaho’s criminal trespass statutes carries a possible six months in prison and/or a fine of up to $1,000. But under this law, authorities sought to punish journalists and investigative reporters with one year in prison and/or a fine of up to $5,000.

Remarkably, the law went so far as to eliminate “subject matter of any audio and visual recordings of agricultural operations made without consent,” which therefore “prohibit[ed] public discussion of an entire topic.” This is a law that prohibited the filming of agricultural “operations” but nothing else, the court noted. It depended on the content of the recording, and Idaho authorities could only determine if someone was criminally liable by viewing the recordings. Which means the state attempted to amass a substantial authority to disrupt the work of the press all to protect agribusinesses.

Like the district court, the Ninth Circuit appeals court ultimately agreed the law was intended to silence animal rights activists, who engage in journalism under the First Amendment, which is another huge victory for the struggle against “ag-gag” laws throughout the country.

Kevin Gosztola

Kevin Gosztola

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