On several occasions, most recently November 13, 2018, we blogged about the differing fates of so-called “ag-gag” laws, statutes designed to prevent animal rights activists from using subterfuges to gain access to farms and to document instances of animal abuse.
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 August 3, Judge B. Lynn Winmill of the District of Idaho ruled that Idaho’s new “ag-gag” law is unconstitutional. Judge Winmill struck down the law on the grounds that the law violated the 1st Amendment and selectively targeted individuals critical of factory farm practices.
“Ag-gag” refers to a range of laws intended to curb undercover investigations of agricultural operations, such as large poultry, pork, and dairy farms. Idaho’s governor signed Idaho’s “ag-gag” into law in February 2014 after a California-based animal rights’ organization produced undercover footage of dairy workers beating and abusing cows on an Idaho farm.
The ban made it a misdemeanor that was punishable by up to one year in prison to make secret recordings or misrepresent one’s identity to gain entrance to an agricultural facility. The law further allowed the owner/employer to recover publication damages pursuant to a restitution provision that requires payment for twice the “economic loss” the owner/employer suffers as a result of any exposé revealing animal abuse or unsafe working conditions.
The federal judge described the ban as a law that criminalized employment-based undercover investigations and criminalized whistleblowing by employees, investigative journalism, or “other expository efforts.” He dismissed the state’s argument that the statute’s purpose is to protect private property by noting that “food and worker safety are matters of public concern.”
Expansion of whistleblower protections has been a prevailing theme across all areas of employment law over the past five years, supported by efforts from the Equal Employment Opportunity Commission (EEOC), the Securities Exchange Commission (SEC), and the Occupational Safety and Health Administration (OSHA). This pro-whistleblower decision continues that theme and is a significant win for rights’ activists in the state of the food supply, whether it’s animal welfare, food safety, worker rights, or the environment. The decision will likely encourage similar challenges in the seven other states with “ag-gag” laws, including Iowa, Kansas, Missouri, Montana, North Carolina, North Dakota, and Utah.