Federal Judge Strikes Down Idaho ‘Ag-Gag Law,’ Defends Undercover Investigations Of Food Industry

An Idaho law enacted to permit the state to jail anyone, who conducts undercover investigations and secretly records animal abuse, was rejected as unconstitutional by a federal judge today. The decision marked the first time a federal court had struck down a state’s “ag-gag law.”

In February 2014, 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 law was an industry response to an undercover operation in Bettencourt Dairy, which led to the recording animals abused and sexually molested. 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 about a month later.

Judge B. Lynn Winmill, of the United States District Court for the District of Idaho, found the law violated the First Amendment and rights to equal protection [PDF].

“The state may not agree with the message certain groups seek to convey about Idaho’s agricultural production facilities, such as releasing secretly recorded videos of animal abuse to the Internet and calling for boycotts,” Winmill wrote. But, “it cannot deny such groups equal protection of the laws in their exercise of their right to free speech.”

The judge contended ALDF had “come forward with abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.”

Beyond that, Winmill argued the First Amendment protected undercover investigations, including lies told by undercover investigators to uncover corruption.

“The lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest. This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect,” Winmill stated.

The judge agreed the “underlying purpose” of the law was to “silence” animal rights activists.

Winmill explained that the provision against recordings not only “restricted” protected speech but discriminated based on content and viewpoint.

“Audio and visual evidence is a uniquely persuasive means of conveying a message, and it can vindicate an undercover investigator or whistleblower who is otherwise disbelieved or ignored. Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast,” Winmill explained.

Particular attention was paid to how the law was designed to silence whistleblowers.

It poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the state does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even if everything depicted on the video is true and accurate.

The law “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,” Winmill maintained. The law circumvents “long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.”

Winmill argued, “If a favorable video of an agricultural facility’s operations is published, a ‘victim’ under the statute will not incur any losses. Instead, the only loss that a victim is likely to suffer from any misrepresentation or unauthorized image captured at a facility is the loss of profits generated by public outcry from the conduct depicted in an unfavorable video. The imposition of such a harsh penalty for speech critical of an agricultural production facility evinces an intent to suppress such speech.”

The state made no credible argument explaining why “counterspeech” would not be able to protect companies or facilities from “interference by wrongful conduct.”

“If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.”

“The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence,” Winmill declared.

The Center for Constitutional Rights (CCR), which filed a brief in support of the lawsuit, applauded the decision.

“Given the suffering consistently documented in undercover investigations, it is unsurprising that the animal agriculture industry would lobby lawmakers heavily to make exposing it illegal. As the court recognized today, the First Amendment does not permit the industry to hide the truth simply because that truth is horrifying,” CCR stated.

Will Potter described the ruling as a “strongly-worded defense of the First Amendment and investigators, and a harsh attack on attempts by corporations to carve out special protections under their law, solely to protect their profits.”

“The ruling sets the stage for ag-gag laws to be challenged in other states on similar grounds. The ALDF, PETA and others are currently fighting ag-gag in Utah,” Potter added. “The recent passage of North Carolina’s sweeping ag-gag laws, which is so broad it includes those who expose abuse at daycares and nursing homes, clearly cannot withstand scrutiny, either.”