We have blogged on several occasions, most recently on June 7, 2018, about the varied fate of so-called “ag-gag” laws. These laws seek to prevent, in one way or another, undercover investigations of the quality of producers’ facilities, usually involving care of animals or poultry.  On September 15, 2017, we blogged about the Tenth Circuit’s partial reversal of an order dismissing a complaint against the Wyoming version of an ag-gag statute.

The statute made it a civil and criminal offense to trespass on private property en route to public property, if the objective was to gather information about producer operations. The issue on remand was whether this statute violated the First Amendment.

On cross-motions for summary judgment, the District Court held that the statute was unconstitutional. It is clear that the First Amendment protects the gathering of information for ultimate use in speech; otherwise, it would be entirely too easy to shut down speech before it ever took place.  The statute was content-based because it only applied to collection of data about land and land use, and not to other purposes.  Thus, it was subject to strict scrutiny.

The statute failed strict scrutiny. The asserted governmental interest was in protecting the property rights of private citizens.  But it made no effort to do so for anyone not collecting data about producer operations.  The Court found this to be especially problematic given that producers deposed in the case had equal or greater problems with trespassing hunters and campers.  Moreover, the statute was not narrowly tailored to that interest.

The Court held that the State could criminalize trespass without any requirement of subsequent engagement with speech. This suggests that the State could accomplish its objective of shutting down speech about producers’ operations merely by strengthening a facially neutral trespass statute.  That in turn raises the prospect of an as-applied challenge to an amended statute.

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.

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 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.