The Media Freedom and Information Access Clinic has filed an amicus brief with the Ninth Circuit Court of Appeals challenging an Idaho law that makes it a crime to record slaughterhouses, feed lots, and other agricultural production facilities unless the owner explicitly consents. These kinds of laws, often known as agricultural gag laws—or "ag-gag laws"— are intended to suppress criticism and public debate about the inhumane treatment of animals and safety of the food supply, according to the clinic.

The brief was filed on behalf of a broad coalition of 24 distinguished scholars of the First Amendment and information law, with the Floyd Abrams Institute for Freedom of Expression at Yale Law School as the lead party.

In the brief, the authors argue that the First Amendment protects the right to record matters of public concern such as agricultural production and that the Idaho law violates this right. More broadly, they argue that the First Amendment's protection extends beyond "pure speech" or dissemination of information and protects the process of creating expression, including video- and audio-recording matters of public concern.

“As technology changes the way we gather and disseminate information, it is essential that First Amendment principles also evolve,” observed David A. Schulz ’78, Clinical Lecturer in Law and director of the MFIA Clinic. “The right to record is a necessary 21st-century extension of the right to inspect, remember and report information of public concern, which has long received constitutional protection.”

The brief points out that video and audio recordings have played a crucial role in spurring some of the most important national debates, from the civil rights movement through to the Vietnam War and most recently the focus on police violence and the Black Lives Matter movement. According to the brief, the Idaho Law cannot stand because it interferes with the right to record and can't be justified by any compelling interest.

“This law is specifically aimed at stifling debate and criticism of the agriculture industry's practices, even though those practices are of enormous public importance to the safety and quality of the nation's food supply,” said Jonathan Manes ‘08, Abrams Clinical Fellow and supervising attorney in the MFIA Clinic. “The First Amendment does not allow the government to protect powerful interests from criticism by making it a crime to document important facts on video.”

The brief was authored by the Media Freedom and Information Access Clinic, including Yale Law School students Stephen Stich ’17, John Ehrett ’17, Yurij Melnyk ’17, and MFIA summer fellow (and Ohio State University student) Russell Fink, under the supervision of Schulz and Manes.

The Media Freedom and Information Access Clinic (MFIA) is a law school clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.

The Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, and access to information as informed by the values of democracy and human freedom.