On May 29, 2018, we blogged about the Supreme Court challenge to California’s ban on traditional foie gras. Our prediction that the Court would seek the advice of the Solicitor General on whether to grant the petition has proven accurate. On June 18, 2018, the Court asked the Solicitor General for his views. That means that the petition will not be decided until next October at the earliest.

On June 22, 2017, we blogged about the challenge to North Carolina’s “ag-gag” law. The statute provides for actual and punitive damages against a person or entity who engages in an undercover investigation into charges of animal cruelty.  People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF) challenged the statute on First Amendment grounds.  The District Court dismissed the lawsuit on the basis that plaintiffs lacked standing – i.e., they had not alleged any immediate concrete injury.

On June 5, 2018, the Fourth Circuit reversed.  The appellate court held that the complaint did adequately allege that the existence of the statute had deterred PETA and ALDF from pursuing undercover investigations at the University of North Carolina at Chapel Hill.  In First Amendment cases, courts have relaxed standing requirements and the chilling effect on speech is sufficient injury to allow the lawsuit to proceed.

The Fourth Circuit declined to consider the State’s alternative argument that the chilling effect was not fairly traceable to the only two defendants in the lawsuit – the chancellor of the University and the Attorney General.  The District Court can visit that issue on remand and the plaintiffs may wish to add additional defendants.

 

Foie gras is based on the livers of geese and ducks. The traditional method of obtaining it is gavage, force-feeding poultry through a tube in their esophagi to enlarge the liver.  In 2004, California passed legislation effective in 2012 to ban the use of force-feeding in California and the sale in California of foie gras produced by such force-feeding any place else.  The rationale for the statute was that force-feeding is cruelty to animals.

Producers and consumers of foie gras sought to enjoin the ban on sales in California on the ground that the federal Poultry Products Inspection Act (PPIA) preempted the California statute.  Plaintiffs prevailed in the District Court, but the Ninth Circuit reversed in an opinion released on September 15, 2017. Association des Eleveurs De Canards et d’oies du Quebec, 870 F.3d 1140 (9th Cir. 2017).

The PPIA preempts state laws that impose marking, labeling, packaging or ingredient requirements in addition to or different from those prescribed by the PPIA.  The key issue in the case was whether California’s ban on the sale of foie gras banned an ingredient.  The District Court held that it did:  plaintiffs’ foie gras could comply with every federal requirement but still violate the California statute because “their products contain a particular constituent – force-fed bird’s liver.”  Thus, the statute “imposes an ingredient requirement.”

The Ninth Circuit thought otherwise.  It held that ingredients pertain to the “physical components that comprise a poultry product,” not the process by which those ingredients are produced.  Even if the result of the California statute is to prohibit foie gras altogether, PPIA preemption would not apply – nothing in the PPIA “limits a state’s ability to regulate the types of poultry that may be sold.”  The Ninth Circuit relied on Fifth and Seventh Circuit opinions holding that federal law did not preempt bans on the sale of horse meat.

The source of this disagreement is the Supreme Court’s ambiguous opinion in Nat’l Meat Association v. Harris. Harris interpreted the preemption provision of the Federal Meat Inspection Act (FMIA), which is essentially identical to the PPIA.  The California statute there at issue prohibited the purchase or sale of nonambulatory animals.

In holding that the FMIA preempted the statute, the Court observed:

  • [I]f the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved.  That would make a mockery of the FMIA’s preemption provision.

The District Court thought that language mandated preemption in the foie gras case. The Ninth Circuit held that Harris involved completely different parts of the two preemption statutes.

Plaintiffs have now filed a petition for certiorari in the Supreme Court.  The petition presents two questions:  whether the PPIA preempts California’s ban on foie gras; and whether Congress has occupied the field of poultry product ingredients.

The petition asserts three grounds for granting the writ.  First, plaintiffs argue that the Ninth Circuit’s holding is contrary to Harris.  The Ninth Circuit held that nothing in the PPIA “limits a state’s ability to regulate the types of poultry that may be sold.”  The petition argues that Harris held that the states are not “free to decide which animals may be turned into meat.”  It also argues that the Ninth Circuit improperly invoked a presumption against preemption that the Supreme Court has explicitly rejected.

Second, the petition argues that the Ninth Circuit has created a clear circuit conflict on whether the PPIA reflects a congressional intent to occupy the field of ingredients in food.  It cites cases from the Fifth and Sixth Circuits so holding.  The conflict is not, however, as great as the petition makes out.  The Ninth Circuit’s authority clearly does hold that states can ban the sale of particular animals for human consumption, although both of those cases pre-dated Harris.

Third, the petition argues that the national interest in uniform application of the PPIA warrants a grant.  If the Ninth Circuit got it right, the City of San Francisco could ban the sale or consumption of all meat products, leading to a potentially Balkanized system of regulation.

Five amici have filed briefs in support of the petition.  California filed its response on May 14, 2018.  We would not be surprised if the Court asked the solicitor general to weigh in, in which case the petition will not be decided until next fall at the earliest.

On December 19, 2017, we blogged about the efforts of several states, including Missouri, to overturn California’s egg regulations by suing California directly in the Supreme Court. A California referendum requires all egg-laying hens in California to have substantially more cage space than is the industry norm.  California egg farmers were understandably concerned about being placed at an economic disadvantage vis-à-vis their out-state competitors, so they lobbied the legislature to require that all eggs sold in California be laid by hens in cages that comply with the space requirement.  As a practical matter, there is no way to comply with that requirement without providing minimum cage space to all hens.

The State of Missouri sued California for declaratory and injunctive relief, alleging that its attempt to control the actions of out-of-state producers violated the Commerce Clause. Both the District Court and the Ninth Circuit rejected those claims, not on the merits, but because Missouri had not alleged that the regulations caused it any damage.

Last December, 12 states joined with Missouri in a motion for leave to sue California in the Supreme Court under the Court’s original jurisdiction.  They supported the motion with an expert report asserting that the California measure has raised the price of eggs across the board.  The motion has been fully briefed by the parties and the Court has asked the Solicitor General for his views on the matter.  The Court will likely decide before the end of June whether to hear the case.

On January 16, 2018, we updated our blogging on so-called “ag-gag” laws – statutes designed to prevent undercover recording of unlawful practices on farms and processing centers. On September 15, 2017, we blogged about the Tenth Circuit’s partial overruling of the Utah statute.

The Supreme Court has now denied the cert. petition filed by People for the Ethical Treatment of People.

On June 22, 2017, September 15, 2017 and October 12, 2017, we blogged about so-called ag-gag laws, laws designed to prevent investigative journalism about producers of food. These laws raise serious First Amendment questions and many have been challenged in court.

The United States Court of Appeals for the Ninth Circuit is the latest to weigh in, resolving a challenge to Idaho’s ag-gag law. The statute created a new crime:  interference with agricultural production.  Such interference consists of:

  • Entry into an agricultural facility by force, threat, misrepresentation or trespass.
  • Acquisition of records of such a facility by force, threat, misrepresentation or trespass.
  • Obtaining employment in such a facility by force, threat, misrepresentation or trespass, with intent to injure the facility’s operations.
  • Making audio or video recordings of the operations of such a facility without consent.

The District Court enjoined enforcement of all four provisions. The Ninth Circuit affirmed in part and reversed in part.  The Court held that the ban on entering onto property by misrepresentation violated the First Amendment.  The Supreme Court has held that not all false speech is unprotected by the First Amendment.  Rather, it is only when such speech obtains material gain or inflicts harm that it is outside constitutional protection.  Here, gaining entry to property to film cruelty to animals does not in and of itself inflict harm or provide material gain.

The Court observed that plaintiffs had only challenged the misrepresentation element and did not challenge entry by force, threat or trespass. It suggested severing that one word to salvage the statute.

Judge Bea dissented from this part of the opinion. He would have found that trespass to property is a cognizable legal harm.  Under Idaho law, a consent to entry that is induced by misrepresentation is invalid.

The Court unanimously reached a different conclusion with respect to the ban on obtaining records by misrepresentation. Obtaining such records can cause material harm to the producer.  For example, people opposed to fur coats could cause considerable damage to mink breeders by destroying breeding records.  Other records might contain proprietary and confidential information, the loss of which would cause material injury.  Conversely, acquisition of such information could give the perpetrator material gain.  So this part of the statute passes muster because it serves a legitimate public purpose.

The Court also unanimously upheld the ban on obtaining employment by misrepresentation, with the intent of causing damage to an agricultural producer. An employee clearly obtains material gain by virtue of picking up his or her paycheck.  The Supreme Court clearly held that an offer of employment is valuable consideration, and hence supports the statute.

The Court unanimously agreed with the District Court that the ban on recording was unconstitutional. It is clear that the process of creating content protected by the First Amendment is also protected; otherwise, an offensive book would never be published.  It is equally clear that the recording statute was content-based, so it has to survive strict scrutiny to satisfy the First Amendment.

The Court held that the recording statute was both underinclusive and overinclusive. It was underinclusive because it banned recordings but not photographs; and because it was limited to operations as opposed to, for example, vineyards.  It was overinclusive because, to the extent the recordings invaded protected legal rights, the producers have a remedy.

Even absent the entry and recording elements, the Idaho ag-gag law is likely to substantially restrict investigative journalism. By far the most common means of gaining access for undercover reporting is a false job application.  That was how Upton Sinclair gained the knowledge he needed to write The Jungle.  It is not clear how an undercover journalist could otherwise gain access to a production facility for any substantial period of time.  And it seems reasonably clear that a desire to expose unsafe or inhumane practices would include the intent to injure those operations.

Several challenges to similar statute are percolating through the federal courts of appeals and it would not be surprising to see a successful certiorari petition to the Supreme Court of the United States.

On March 16, 2017, and June 6, 2017, we blogged about Missouri’s legal challenge to California’s egg rules.  Now, there are two motions pending in the Supreme Court of the United States challenging the California law and a similar law in Massachusetts.

California requires its egg producers to provide substantially more space per egg-laying hen than is the industry standard. Obviously, that significantly raises the cost of producing any single egg.  To protect its producers, California prohibits the sale of eggs from any other state that do not conform to the same space standards.  Federal courts rejected Missouri’s pre-enforcement challenge on the ground that the State had sustained no concrete injury, and did not reach the merits.

In 2016, Massachusetts adopted a similar law via an initiative petition.  The Massachusetts law applies to pigs and veal, in addition to eggs.  Like California, it prohibits the sale in Massachusetts of eggs, pork or veal that does not comply with Massachusetts’ space requirements.

Earlier this month, Missouri joined twelve other states in seeking leave to sue California in an original action in the Supreme Court.  Missouri attached to its proposed complaint a 41-page expert report analyzing the increased costs imposed by California’s regulations.  According to the report, Missouri pays between $18,000 and $76,000 in additional costs to buy eggs for its correctional facilities.  Nationwide, the report estimates that consumers will pay between $227 million and $911 million in additional costs.  Thus, the Missouri complaint alleges both direct injury to the State in the form of higher prices it must pay for eggs and parens patriae injury to Missouri consumers.

The Missouri complaint alleges that the federal Egg Product Inspection Act (EPIA) preempts any state regulation of eggs that are “in addition to or different from” federal regulations issued under the EPIA.  In 2012, in National Meat Association v. Harris, a unanimous Supreme Court held that identical language in the Federal Meat Inspection Act preempted California’s attempt to regulate slaughterhouses.  Missouri also alleges that California’s egg rules violate the dormant commerce clause by effectively subjecting every State to its regulations. Continue Reading California Egg Update

On June 22, 2017 and September 15, 2017, we blogged about “ag-gag” laws – laws intended to prevent undercover access to agricultural production facilities for the purpose of finding and disclosing unethical behavior. These laws have met with varying fates in the federal courts.

In 2012, the Iowa legislature passed an ag-gag law, making it a misdemeanor to obtain access to an agricultural production facility by false pretenses or to obtain employment at such a facility by such means.

On October 10, 2017, the Animal Legal Defense Fund and several other pro bono organizations filed suit for declaratory and injunctive relief against Iowa’s ag-gag law. The suit alleges that the statute violates the First Amendment, both facially and as applied, in that it is a content-based restriction on efforts to obtain information about mistreatment of animals.  The suit also alleges that the statute was motivated by animus against the plaintiffs and hence violates due process and equal protection.

On June 22, 2017, we blogged about the Wyoming “ag gag” statute designed to discourage undercover reporting in animal facilities. The statute prohibited persons from (1) trespassing on private land for the purpose of collecting data; (2) trespassing to collect data; or (3) trespassing to obtain access to public land for such purposes. The District Court held that the statute implicated no First Amendment concerns, as it merely prohibited trespassing, although the penalties for violation were substantially greater than under the general trespass law.

Last week the Tenth Circuit reversed and remanded the case for further proceedings, including the proper standard of review and a decision on he merits. The appellate court held the act of collecting information on public lands was protected by the First Amendment, because obtaining information is a necessary prerequisite to disseminating it. It relied on several cases holding that the First Amendment protects the recording of public officials’ public conduct.

The Tenth Circuit recognized that not all regulations that incidentally restrict collection or dissemination of information necessarily implicate the First Amendment. For example, the Supreme Court has upheld restrictions on the right to travel to Cuba even though that would interfere with the acquisition of information about the island. The Court suggested that the application of Wyoming’s general trespass statute to trespassers in search of information might not implicate the First Amendment. But the substantially higher penalties in the ag-gag law did.

The appellants in Wyoming did not appeal from the ruling that trespassing with the purpose or effect of collecting information satisfied the First Amendment, so those parts of the statute will remain in effect. The Ninth Circuit has not yet ruled on the successful challenge to Idaho‘s ag-gag law nor the Fourth Circuit on the unsuccessful challenge to North Carolina’s law.

Given the number of these statutes and the inconsistent results reached by the lower courts to date, a successful cert. petition may be in the works.

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.