On June 22, 2017, we blogged about the status of so-called “ag-gag laws” in various states. The purpose of such laws is to prevent undercover exposure of mistreatment of farm animals. On July 7, 2017, a federal district court held that Utah’s ag-gag law violated the First Amendment.
The Utah statute criminalized four kinds of conduct. It made it illegal to gain access to an agricultural operation under false pretenses. It also prohibited bugging an agricultural operation; filming such an operation after applying for employment with an intent to film; and filming such an operation while trespassing.
The Animal Legal Defense Fund and others sought to enjoin the statute as a violation of their First Amendment rights. The State countered that the statute only prohibits lies and that the First Amendment does not protect lies. In United States v. Alvarez, the Supreme Court held that lies were unprotected only if they cause legally cognizable harm. The District Court concluded that false pretenses incidental to filming animal abuse caused no such harm.
The State first claimed that the statute protected the health of animals and other employees. The District Court agreed that this would qualify as legally cognizable harm under Alvarez and it recognized that some lies – the ability to operate farm machinery competently, for example – could indeed cover it. But many of the lies that undercover operatives tell – their longstanding desire to work on a farm, for example – would not cause such harm, so the statute was fatally overbroad.
The State next argued that trespass in and of itself was legally cognizable harm. Plaintiffs countered that they had consent, albeit induced by deception. The District Court held that whether the consent was effective depended on the type of harm that the liar causes. If the liar causes the kind of harm that trespass was intended to protect – interference with ownership or possession of land – the lie vitiated the consent. If the lie causes some other type of harm, however, the consent remains in effect.
Once again, the District Court recognized that some liars could indeed injure ownership or possession of property and hence be guilty of trespass. But other kinds of liars – e.g., the food critic who conceals his identity from the restaurant – would never cause trespass-type harm. So, once again, the statute was fatally overbroad.
The State’s final argument was that lying to obtain employment causes harm because the employer is paying money on the false assumption that it has a loyal employee. Again, however, the statute criminalized many more lies than merely ones made to obtain employment so it again was overbroad.
Alternatively, the State contended that the statute’s recording provisions were constitutional, because recording audio or film is not itself speech. The District Court observed that the Supreme Court had held that the right to broadcast such things as movies was protected and thus the right to record them in the first place was necessarily protected.
The State’s final argument that the First Amendment did not apply was that the statute only regulated speech on private property and private landowners have the right to exclude others. This argument failed because the entity attempting to regulate speech is the State, not the owner of the agricultural production facility.
The District Court held that strict scrutiny was the appropriate standard of review because the statute regulated on the basis of content, thus requiring the State to prove a compelling governmental interest protected by a narrowly tailored statute. As a practical matter, application of strict scrutiny is almost always fatal to a statute, and so it is here.
The State argued that it had a compelling interest in avoiding disease and injury to workers or animals from incompetent undercover agents. But the State produced no evidence that undercover agents caused these problems and purely speculative harm is never a compelling state interest. Moreover, there were plenty of other ways to avoid these evils.
Expect an appeal. The same issue is currently before the Tenth Circuit on an appeal from an order sustaining Wyoming’s ag-gag law.