On January 16, 2019, we blogged about the successful challenge to Iowa’s so-called Ag-Gag Law, designed to prevent undercover investigations of abusive farm practices. As expected, the state of Iowa has appealed that decision to the Eighth Circuit.

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 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.

For years, animal rights activists have employed various subterfuges to gain access to animal facilities to film or video animal abuses. For example, a reporter will apply for a job at an animal facility and use his/her I-phone to record mistreatment of animals. The adverse publicity generated by these undercover activities has cost many entities millions of dollars and resulted in some bankruptcies.

Several states have enacted so-called “ag gag” laws that attempt in one way or another to limit these underground efforts. These laws typically prohibit film or video of animal or research facilities.  Others prohibit submitting a false employment application as a means of gaining access to such facilities. These laws have met with varying results in court.

Idaho was the first state to enact a modern ag gag law in 2014, following release of a video demonstrating animal abuse at a dairy. The statute creates 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.
  • Intentionally causing injury to the facility, its operations or its property.

Violation is a felony punishable by a year in jail. In addition, the statute provides a private right of action to recover twice the economic injury sustained by the facility.

The Animal Legal Defense Fund sued to enjoin the statute, arguing that it violated both the First Amendment and equal protection. The District Court agreed with both arguments. It rejected the State’s argument that the First Amendment does not protect false statements. The correct rule, the Court held, is that it does not protect false statements that cause legally cognizable harm. Here, false statements to obtain employment or access do not cause material harm. Disclosure of animal mistreatment may cause material harm, but that is not the direct product of the alleged misrepresentations. The false statements actually serve First Amendment values by exposing misconduct and fostering public debate. Continue Reading “Ag Gag” Laws