On June 12, 2020, we blogged about the so-called ag gag law enacted by the Arkansas legislature.  Animal rights organizations such as People for the Ethical Treatment of Animals (PETA) or the Animal Legal Defense Fund (ALDF) often conduct undercover investigations of farms and ranches to uncover abusive practices and publicize them to the world.  A typical method for undercover investigation is to seek employment under false pretenses, then secretly film possible abuses.

Naturally, farmers and ranchers are unenthusiastic about such practices.  In rural states where they have substantial political power, they have persuaded a number of legislatures to prohibit them.  Such ag gag laws raise serious First Amendment problems.

The Arkansas statute is not typical of other state ag gag laws.  It covers all commercial property, not just agricultural facilities.  It imposes no criminal penalties and allows only for private enforcement.  The $5,000 a day penalty plus attorneys’ fees is, however, plenty draconian.  The ALDF asked two producers to waive their rights under the statute – the principal of one of which had sponsored the bill in the legislature.  When the producers declined to respond, the ALDF and others sued them.

The District Court held that plaintiffs lacked standing to sue, because they had not alleged that there was any likelihood that farmers or ranchers might sue them or that the producers had engaged in conduct that might merit undercover investigation.

By a 2-1 vote, the Eighth Circuit reversed.  The majority opinion by Judges Colloton and Wollman and the dissent by Judge Shepherd both focused primarily on the concrete harm aspect of standing.  The complaint alleged that plaintiffs had engaged an investigator and, but for the statute, would have sent him into the producers’ facilities to see what he could find.  The complaint also alleged that plaintiffs had successfully done so at similar facilities in the past, which “lend concreteness and specificity to the plaintiffs’ claims.”

The majority also held that plaintiffs had properly alleged an objectively  reasonable fear of future prosecution of civil claims under the statute.  They alleged that, but for the statute, they would have undertaken an investigation.  They alleged a factual basis for believing that the defendants were engaging in practices that should be exposed to the world.  They also argued that a principal in one of the defendants had sponsored the bill in the legislature and both defendants had refused to say they would not exercise their rights under the statute.

The dissent saw it differently.  The dissent argued that the causal chain required at least four links:  the investigator got himself hired; he found evidence of animal abuse via an unauthorized investigation; plaintiffs published the evidence; and defendants sued under the statute.  Judge Shepherd thought that this was entirely too speculative to warrant standing.  Judge Shepherd thought that the Supreme Court required that an injury be certainly impending to warrant standing.

The dissent argued that courts had never allowed standing when the allegedly concrete harm was wholly dependent on the acts of third parties not under the plaintiffs’ control.  Here, the injury depends entirely on what the investigator does and what, if anything the defendants do in response.

In our view, the dissent does not give full credence to the First Amendment interests at issue.  If plaintiffs do have an objectively reasonable basis for fearing suit, and restrict their speech in response to it, that constitutes concrete injury.  The “certainly impending” language comes from a case alleging fear of illegal wiretapping by the government, a very different issue than First Amendment chilling.

At the same time, we are inclined to believe that the true basis for the majority opinion is the deference due to the allegations in the complaint on a motion to dismiss.  It is entirely possible that, with the aid of discovery, defendants can establish that the causal links plaintiff must prove are simply too speculative.  If we represented the defendants, we would certainly explore those issues in discovery with a view toward an early motion for summary judgment.

We believe that the majority and dissent are in agreement that, if plaintiffs have established concrete harm, they have satisfied the other elements of standing.  There is clearly a causal relation between that harm and the passage of the statute and the requested injunction will put an end to it.