Could Iowa's 'ag gag' law be undone by Idaho court ruling?

A federal appeals court ruling that struck down part of an Idaho law outlawing undercover investigations of meatpacking plants and livestock facilities could have ramifications in Iowa.

The U.S. 9th District Court of Appeals this month said parts of Idaho's "ag gag" law violate the U.S. Constitution's First Amendment protecting free speech.

The Idaho law, targeting undercover investigations, made it a crime to lie to get a job at livestock production facilities and secretly record operations.

Iowa and nine other states have passed laws designed to curb secret investigations of meatpacking and livestock operations.

The panel held that the section of Idaho's law covering misrepresentations used to enter a production facility "criminalized innocent behavior, was staggeringly over-broad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists," wrote M. Margaret McKeown, a U.S. circuit judge.

The panel also struck down a section of the law that banned audio and video recordings of a production facility’s operations.

But the appeals court upheld parts of the law making it a crime to use misrepresentation to obtain records — or employment with the intent to cause harm.

"Matters related to food safety and animal cruelty are of significant public importance," McKeown wrote. "However, the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability."

Jared Goodman, director of animal law at the PETA Foundation, said the ruling helps lay the foundation to remove Iowa's ag fraud act.

"The wheels of justice move slowly, but we believe we'll have a court decision striking down Iowa's ag gag laws" within five years, Goodman said.

Eldon McAfee, a West Des Moines attorney who represents Iowa pig, cattle and other livestock producers, said the court ruling helps Iowa's defense against a pending challenge from PETA and others.

"Most of our producers are concerned about false statements to gain employment, and that was a critical point this court upheld," McAfee said.

Iowa law similar, but different

In 2012, Iowa lawmakers passed the Agricultural Production Facility Fraud Act, making it a serious misdemeanor to use false pretense or statements to obtain access to a farm production facility or obtain employment.

The American Civil Liberties Union of Iowa, People for the Ethical Treatment of Animals, Iowa Citizens for Community Improvement, Bailing Out Benji and others challenged Iowa's law in October, calling it unconstitutional.

The Iowa Attorney General's Office, representing the state, seeks to dismiss the motion.

Looking at the impact of the federal ruling, "I see it as a 50-50 split," said Kristine Tidgren, assistant director of Iowa State University's Center for Agricultural Law and Taxation.

Iowa's arguments for making it a crime to use false statements to obtain access to a farm production facility could be weakened by the ruling, while the provision banning false statements to gain employment could be strengthened, she said.

While the laws aren't exactly the same, there are parallels, Tidgren said.

Lawyers battling over the laws might look closely at the question of intent, she said.

Iowa's law prohibits using false statements to gain employment and "commit an act not authorized by the owner."

Idaho's law looks at whether the employment misrepresentation is made "with the intent to cause economic or other injury."

"The fact that the Idaho statute was upheld means it stays on the books, but I think (Idaho) would have a whole other round of litigation if someone were actually prosecuted," she said. "There would have to be an intent to cause economic injury."

Do undercover workers seek to do harm?

PETA's Goodman said undercover activists and journalists have no intent to harm companies when they record livestock operations or meat processing plants.

"The purpose of these undercover investigations is not to cause harm to these companies. It's simply to record what's going on and show the public what's happening behind closed doors," he said.

The coalition said in its motion challenging Iowa's law that journalists and animal protection advocates have conducted more than 80 investigations over the past decade at U.S. production facilities, including 10 in Iowa, with work uncovering "horrific animal suffering," food safety violations, environmental and labor violations, among other problems.

The reports "have so drastically changed the conversation that legislatures are designing bills specifically to target them," Goodman said.

McAfee said the undercover workers often have an "ill-will or motive" when they misrepresent themselves to gain employment.

And the Iowa attorney general's motion to dismiss says that just gaining unauthorized access to a private facility itself can cause economic harm.

Are whistle-blowers stifled?

Neil Hamilton, director of Drake University's Agricultural Law Center, said states' ag gag laws could unintentionally stifle whistle-blowers who may want to record wrongdoing in farm production facilities to help support their observations.

"If you were a manager, wouldn't you want to know what was going on? Wouldn't you want that brought to your attention?" he said.

In his dismissal motion, the Iowa attorney general said nothing in the state's law stops "whistle-blowers from secretly recording the conditions within the facility and reporting said conditions to third parties or even law enforcement."

McAfee said producers encourage employees to report abuse.

Additionally, employees or others witnessing inappropriate activities at production facilities can call Iowa Farm Animal Care.

The coalition, led by ag groups, provides livestock production information to consumers and investigates animal care complaints with a team that includes ISU veterinarians and other industry experts.

PETA's Goodman said laws curbing free speech also hinder efforts to expose animal and human rights abuses. It's the only way to expose wrongdoing and "inform the public," he said.