An ag-gag law has been ruled unconstitutional for the first time

An Idaho federal judge ruled that the state’s law banning undercover investigations on farms violates the First Amendment.

By Willy Blackmore

From TakePart

After years of animal rights activists saying the spate of state laws outlawing undercover investigations of farming operations—so-called ag-gag laws—violate free speech rights, a federal judge has ruled the very same.

On August 3rd, U.S. Chief Judge B. Lynn Winmill of the District of Idaho said the state’s 2014 law—which came in response to an exposé video produced by the animal rights group Mercy for Animals that went inside an Idaho dairy farm—both violated the First Amendment and selectively targeted critics of the industry. It’s the first time such a law has been struck down on constitutional grounds.

In his summary opinion, the judge wrote that “the effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

“The facts show the state’s purpose in enacting the statute was to protect industrial animal agriculture by silencing its critics,” he wrote.

It’s the kind of language you might find in an op-ed from the head of an animal rights group. The judge went on to reference Upton Sinclair’s The Jungle, the 1906 novel that exposed harsh conditions in the meatpacking industry and led to widespread reforms in Chicago’s stockyards. To research the book, Sinclair spent seven weeks working in slaughterhouses.

“The reference to Upton Sinclair and The Jungle is significant,” said Matthew Liebman, one of the Animal League Defense Fund’s lead attorneys on the case. “As the judge noticed, if this legislation had been in place when Sinclair lied about who he was to get a job and write The Jungle, he would have been a criminal.”

To be fair to Sinclair, a dyed-red-in-the-wool socialist, he was more concerned with the workers than with food safety and animal welfare, the issues that became the book’s legacy.

Were the book set in Idaho in 2014, the author could have been convicted on misdemeanor charges punishable by a maximum sentence of one year in jail, a $5,000 fine, and restitution. Under the law, it was illegal to enter a facility or obtain records “by force, threat, misrepresentation or trespass”; acquire a job “with the intent to cause economic or other injury to the facility’s operations”; make an unauthorized audio or video recording; or damage facilities.

But as far as ag industry advocate Russ Hendricks is concerned, any contemporaries of Sinclair should be treated as criminals if they lie or misrepresent themselves to gain access to a farming facility.

When asked what he thought of the argument that the legislation violated the First Amendment, Hendricks, the director of government affairs for the Farm Bureau’s Idaho chapter, quickly said no and, after a pause, repeated himself.

“That argument we found wholly unpersuasive,” he continued. “That’s a misunderstanding of the First Amendment. Certainly anybody has a right to write about anything they want, to say anything they want—but they can’t trespass or misrepresent themselves to gain information. That is not part of the First Amendment.”

If activists do not have permission to record audio or video on a farm, “they have violated that person’s property rights,” he said.

That’s one of the primary arguments made in favor of what those in the agriculture industry call farm protection laws. But as activists and lawyers like Liebman point out, there are already numerous laws on the books that protect the property rights of farm owners. And the courts have lent support to that notion, it seems, by throwing out ag-gag charges while pursuing charges for violating long-standing criminal trespass statutes.

There are wiretapping laws, such as California’s wiretapping law, that require two-party consent to record a conversation, which protects individuals’ right to privacy. Then there are issues such as filming the police, which has been deemed constitutional, even if officers routinely tell people they cannot record their actions. The difference is a matter of public interest: What the police do is a matter of public importance, according to the law, while your private phone conversations are not. So when it comes to the agriculture industry, the question is whether or not what happens within private facilities is a matter of public importance—and in this instance, Willmill ruled that it is of “great public importance.”

Idaho, after all, is the country’s third-largest dairy state, and it supplies milk for hugely popular brands like Chobani—whether you’re aware of it or not, you have probably consumed milk or other dairy products that originated in the state.

The problem farmers face with a buying public that is increasingly removed from rural, agricultural life is that raising livestock isn’t always pretty, even when it’s done in what has been accepted as an ethical manner. Chobani, for example, sets a high bar for animal welfare and has transitioned to non-GMO feed for its cattle—consumer-minded decisions that change the way Idaho dairymen must run their farms. Still, despite the company’s efforts to take the higher road when it comes to raising livestock, realizing that the cows that provide the milk for Chobani’s morning Greek yogurt are largely kept in barns and latched on to milking machines instead of frolicking through pastoral rolling hills could be enough to turn off some buyers.

That legal status quo is far different from the kind of animal abuse depicted in the Mercy for Animals video that spurred the legislation, which led to criminal charges. But The Jungle, after all, almost single-handedly ruined the lard industry with its fictitious depiction of workers falling into the vats of boiling pig fat where Durham’s Pure Leaf Lard was made. It’s part of the reason why Temple Grandin, who designs humane slaughterhouse facilities, has called on the industry to embrace transparency.

“We also have to remember everybody’s got one of these,” she said at a Farm Bureau conference in San Diego earlier this year. “You can’t get away from video cameras anymore. So what we need to be doing is changing some practices and opening up the doors.”

And with the Idaho victory and a similar case against the Utah law in the discover phase, Liebman believes animal rights groups have the momentum. “I do think that the tide is turning against ag-gag,” Liebman said. Although one new state law was passed in North Carolina earlier this year, “we’ve defeated these bills in legislatures across the country, but that’s the first in the last couple of years, and the majority of the bills that are being introduced are being defeated.”

“I think this whole issue is opening up the public’s eyes to the fact the meat industry has a whole lot to hide,” he added.