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.
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