Idaho Ag Gag Law Knocked Down By Judge Protecting Freedom of Speech & Whistleblowers

The Idaho legislature passed a bill, which was signed into law by Governor C.L. Butch Otter on February 14, 2014, that created a new crime, “interference with agricultural production” (Idaho Code Section 18-7042).  This so-called “ag gag” law criminalized any of the following five specified actions:

(1) a person, not employed by an agricultural production facility, enters a production facility “by force, threat, misrepresentation or trespass;” (2) a person obtains records of an agricultural production facility by force, threat, misrepresentation or trespass; (3) a person obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations; (4) a person enters an agricultural production facility that is not open to the public and, without the owner’s express consent or authorization by judicial process or statutory authorization, makes audio or video recordings of the conduct of the facility’s operations, and (5) intentionally causes physical damage or injury to the facility’s operations, livestock, crops, personnel, equipment, buildings or premises.

Chief Judge B. Lynn Winmill for the U.S. District Court of Idaho, in a thoughtful and thorough decision, has granted summary judgment to the Animal Legal Defense Fund (and the sixteen other organizations and individuals), who challenged this Idaho ag gag law, on the basis that it violated the First Amendment right to free speech.  Judge Winmill also determined that this Idaho law violated the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups and impinged on their fundamental right of free speech.

The Idaho ag gag law was initially drafted and sponsored by the Idaho Dairymen’s Association, a trade industry organization that represents dairy farmers and producers in the state. The association was responding to the negative publicity generated by a video secretly recorded by Mercy for Animals, a Los Angeles-based animal rights’ group which showed workers at the Bettencourt Dairies’ Dry Creek Dairy in Hansen (Twin Falls County), Idaho “using a moving tractor to drag a cow on the floor by a chain attached to her neck and workers repeatedly beating, kicking, and jumping on cows.”

Idaho is not the only state to enact an ag gag law. Similar laws have been enacted in Iowa, Kansas, Missoui, Montana, North Dakota, and Utah, with a new North Carolina law effective in January 2016.  With an extraordinary eleven amicus (friend of the court) briefs filed in this litigation, including briefs from the Reporters Committee for Freedom of the Press and from Professors Susannah W. Pollvogt and William Araiza (scholars of the Law of Unconstitutional Animus), Judge Winmill’s determination was awaited by many and his thoughtful constitutional analysis will have consequences for the other ag gag state laws, certain to be similarly challenged in court proceedings.

In his strongly worded decision, Judge Winmill noted that “Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.” Instead, “animal agriculture is a heavily-regulated industry and food production and safety are matters of the utmost public concern.” With a literary jab, the judge pointed out that under Idaho’s ag gag law, the conduct of Upton Sinclair, who lied to get a job at a Chicago meatpacking plan, and thereby documented the horrors in The Jungle (which resulted in major federal food-safety legislation), would be subject to criminal prosecution under a law like the Idaho law, now struck down.

Other plaintiffs, who joined Animal Legal Defense Fund in this successful litigation, included five named individuals and these eleven other organizations: American Civil Liberties Union of Idaho, Counterpunch, Farm Forward, Farm Sanctuary, Idaho Concerned Area Residents for the Environment, Idaho Hispanic Caucus Institute for Research and Education, People for the Ethical Treatment of Animals, River’s Wish Animal Sanctuary, Sandpoint Vegetarians, The Center for Food Safety and Western Watersheds Project.

Animal Legal Defense Fund, et al. v. C.L. Butch Otter, et al., No. 1:14-cv-00104-BLW, 8/3/15, Judge B. Lynn Winmill)

Frank W. Barrie (9/4/15)

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