WASHINGTON, July 27, 2016 - The fight over laws which seek to prevent people entering a private farming operation with the goal of conducting undercover investigations, is coming to a head in federal courts around the country.
Animal rights groups and constitutional law scholars are teaming up in Utah and North Carolina to overturn laws, which they commonly refer to as “ag gag” laws, now on the books. But it is the fate of Idaho’s law that may have the most influence on the success or failure of future attempts to pass similar measures, which are now in effect in six states, including Iowa and Missouri.
Idaho has appealed a federal judge’s ruling last year that struck down its attempt to prevent activists or journalists from obtaining access to facilities through misrepresentation.
The appeal is being considered by the San Francisco-based U.S. Court of Appeals for the 9th Circuit, whose jurisdiction covers eight Western states. Thus, a ruling against Idaho would effectively prevent similar laws from being enacted in those states.
The Idaho legislature passed its bill early in 2014 after a Los Angeles-based animal rights group, Mercy for Animals, released a video showing alleged animal abuse at Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho. The Animal Legal Defense Fund filed a lawsuit challenging the state law.
video showed “workers using a moving tractor to drag a cow on the floor by a
chain attached to her neck and workers repeatedly beating, kicking, and jumping
on cows,” Chief U.S. District Judge B. Lynn Winmill of Idaho said in his Aug.
3, 2015, ruling, nullifying the state law.
“The facts show that the state’s purpose in enacting the statute was to protect industrial animal agriculture by silencing its critics,” the judge wrote in his decision (Animal Legal Defense Fund v. Otter).
But the state, in a brief filed in April with the appeals court, said “there is no First Amendment right to enter another’s property to engage in speech or expressive activities.” In a statement of the case the court noted that, the “Appellees seek a right, shielded by the First and Fourteenth Amendments, to lie their way onto agricultural production facilities, to lie so that they may obtain a facility’s records, and to lie in order to obtain a job at a facility—even if they seek and obtain that job intending to harm the business.
“They also claim that they must be permitted under those Amendments to enter agricultural production facilities that are not open to the public and make audio or video recordings of the facility’s operations—even over the owner’s objections.”
The Animal Legal Defense Fund has received support from a host of other groups, including the Plant-Based Food Association (PBFA), which filed a brief last month supporting Winmill’s decision.
“Restrictions on speech about food should be entitled to more rigorous scrutiny than ordinary commercial speech because of the central importance of food to human life,” PBFA said in its June 28 “friend of the court” brief.
But where ALDF has received support from First Amendment scholars, media companies and unions, Idaho is going it alone in the 9th Circuit. The Idaho Dairymen’s Association, which was central to the bill’s passage in the legislature, is not filing an amicus brief to support the state.
“IDA filed an amicus brief when it was in Idaho federal court, but we are not planning on filing a brief in the 9th Circuit at this time,” IDA Executive Director Bob Naerebout said.
Asked whether the group would try to rewrite the law if the 9th Circuit affirms Winmill’s ruling, Naerebout said it would not, “since we don’t believe it could be written in such a way that would provide protection for agriculture and satisfy Judge Winmill.”
Naerebout also took issue with the phrase “ag gag,” to describe the law and similar statutes.
“That negative terminology is the headline-grabbing attention of mainstream media and social media bloggers,” he said. “I would hope that the agriculture media would recognize these laws for what they are: laws designed to offer protection to agriculture (private business) and establish their private property rights. Therefore our law, endorsed, promoted and lobbied for by all of Idaho agriculture is referenced as ‘Agriculture Security Legislation.’”
Similar laws passed in Utah and North Carolina are also being litigated in federal district courts in those states. In North Carolina, the state is seeking to have a lawsuit dismissed on constitutional and standing grounds. In Utah, the case has advanced to the summary judgment stage.
Chris Holbein, public policy director of farm animal protection for the Humane Society of the United States, said fewer “ag gag” measures have been introduced in recent years.
“We suspect this is in large part because of the success that HSUS, other non-profits and regular citizens have had in defeating them. So far this year we have helped stifle an ag-gag bill in Tennessee, as well as a harmful measure in Arizona that contained a whistleblower suppression component.”
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