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.
The
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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