“Ag-gag” law violates free speech rights of whistle-blowers, rules federal judge

A federal judge declared unconstitutional Monday an anti-whistleblower law in Idaho that criminalized audiovisual recordings of agricultural production facilities. In the decision, Chief District Judge B. Lynn Winmill wrote that Idaho Code § 18-7042 “not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights” under the First Amendment.

[T}he statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.

Judge Winmill also found the statute in violation of the Constitution’s Equal Protection Clause, concluding that its enactment “was animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry, and the law furthers no other legitimate or rational purpose.”

The State contends that the purpose of § 18-7042 is to protect the private property of agricultural facility owners by guarding against such dangers as trespass, conversion, and fraud. But the State fails to explain why already existing laws against trespass, conversion, and fraud do not already serve this purpose.

Passage of the Utah law in 2014 followed an investigation and release of videos by Mercy For Animals that showed dairy employees kicking and punching cows.

In 2012, the animal welfare group Mercy For Animals released graphic videos from an investigation of workers at Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho, kicking, punching and jumping on cows. In response, the Idaho Dairymen’s Association drafted legislation in 2014 to criminalize future undercover investigations. Though Mercy for Animals released another set of videos showing further abuse, Idaho Gov. Butch Otter signed the bill into law shortly after passage. (NPR)

A coalition of organizations and individuals filed the Idaho lawsuit, among them the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, American Civil Liberties Union of Idaho, Center for Food Safety, Farm Sanctuary, Idaho Concerned Area Residents for the Environment, CounterPunch, and journalist Will Potter.

Six other states, including Utah, have passed similar “ag-gag” laws under the influence of industry lobbyists, often incorporating language from model legislation promoted by the American Legislative Exchange Council (ALEC).

In many media reports, the issue has been conflated with animal-rights extremism and the oft-criticized tactics of groups like PETA, whose outspoken campaigns and use of graphic imagery can turn off even potential allies.Morales said agricultural interests in Idaho have capitalized on the dubious reputation of some animal-rights groups as a means of categorizing all ag-gag critics as a fringe element, thereby deflecting attention from the law’s potential to undermine free speech. “It’s strategy of the other side,” he said. “Groups that opposed this law were called ‘radicals’ and ‘terrorists.’ These are the terms that the other side has used to really break the credibility of any group that opposes these pieces of legislation.” (International Business Times)

Food author Mark Bittman criticized the “sweeping” scope of ag-gag legislation introduced in Minnesota.

Minnesota’s “ag-gag” law — isn’t that a great name? — would seek to punish not only photographers and videographers but those who distribute their work, which means organizations like the Humane Society of the United States and Mercy for Animals, which contracted the videographer for the E6 investigation. “It’s so sweeping,” says Nathan Runkle, the executive director of Mercy for Animals, “that if you took a picture of a dog at a pet shop and texted it to someone, that could be a crime.” Unconstitutional? Probably, but there it is.

Videotaping at factory farms wouldn’t be necessary if the industry were properly regulated. But it isn’t. – Mark Bittman

2013 editorial in the Dallas Morning News mocked ALEC’s efforts to float ag-gag legislation on waves of 9/11 hysteria.

The way the American Legislative Exchange Council apparently sees it, there are two kinds of terrorism. There’s the Osama bin Laden kind, where you fly airplanes into buildings and kill thousands of people. Then there’s the form of terrorism known as photographing wrongdoers without their consent. This terrorism must be stopped, ALEC says. For the love of God and all humanity, it must be stopped. Wrongdoers henceforth must not be photographed doing wrong unless they consent.

ALEC is distributing proposed legislation called the Animal Ecological Terrorism Act, which would outlaw the videotaping of activities inside slaughterhouses, zoos, chicken farms, puppy mills or other locations where animals are raised for profit and often seriously abused in the process.

That same view permeated “counterterrorism” training provided in 2004-5 by USDA’s Food Safety and Inspection Service to its employees and those of state agriculture agencies. At one of the classes (attended by this author), a course instructor described environmental activists as terrorists, the same as Al Qaeda. Groups as different as the Sierra Club and the Animal Liberation Front were lumped together as threats to be monitored by agriculture agency employees:  online, by phone and by undercover visits to homes and offices.

So far, few arrests have been made for violating ag-gag laws. In January, four California activists were charged with violating a Utah ag-gag law for filming a pig farm although the activists said they were careful to film from a public road. Officials subsequently dropped the charges but the arrest sent a chilling message, nevertheless, to activists, journalists and whistleblowers. A lawsuit challenging Utah’s law is underway.

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Additional Information

Law and Case Documents

Idaho Statute 18-7042, “Interference with Agricultural Production”

Civil Rights Complaint, Case No. 1:14-CV-104

Decision, Case No. 1:14-CV-104

 

News Coverage

Video: Groups File Suit Against Idaho Governor, AG Over Ag-Gag Law (Boise Weekly)

2014 Legislative Update by the Idaho Dairymen’s Association commenting on passage of Senate Bill 1337 and the lawsuit filed by activist groups

Pssst … Wanna Buy a Law? (Bloomberg Businessweek)

Ag-gag Laws Silence Whistleblowers, article with video (Moyers & Company)

 

Other

2002 version of ALEC’s Model Legislation archived by ALECexposed.org

Model Legislation, The Animal and Ecological Terrorism Act, “Approved by ALEC Board of Directors in January 2004” and “Reapproved by ALEC Board of Directors on January 28, 2013″

 

 

 

 

 

 

 

 

laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.

“[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Mosley, 408 U.S. at 96.

Because ALDF has shown that enactment of § 18-7042 was animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry, and the law furthers no other legitimate or rational purpose, the Court finds that the law violates the Equal Protection Clause.

Here, § 18-7042 discriminates both on its face and through its purpose. Section 18- 7042 discriminates on its face by classifying between whistleblowers in the agricultural industry and whistleblowers in other industries. In addition, ALDF has come forward with abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.

 

the State discounts the fact that § 18-7042 criminalizes recordings even when made by a person who is otherwise lawfully permitted to be there, i.e., the trusted employee who seeks to do right by exposing animal abuse. Like the proposed recording in ACLU v. Alvarez, at least some of the recordings banned under § 18-7042 would be otherwise lawful—that is, not disruptive of the workplace, and carried out by people who have a legal right to be in a particular location and to watch and listen to what is going on around them. Id. at 606.

§ 18-7042 not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the State does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even Case 1:14-cv-00104-BLW Document 110 Filed 08/03/15 Page 20 of 29 ORDER – 21 if everything depicted on the video is true and accurate. Id. § 18– 7042(3) & (4). In other words, the statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights. By legislating this broadly—by making it a crime for even employees to film matters of public concern at the workplace—“the State has severed the link between the [] statute’s means and its end.” American Civil Liberties Union v. Alvarez, 679 F.3d at 597.

 

The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike.

 

The State contends that the purpose of § 18-7042 is to protect the private property of agricultural facility owners by guarding against such dangers as trespass, conversion, and fraud. But the State fails to explain why already existing laws against trespass, conversion, and fraud do not already serve this purpose. The existence of these laws “necessarily casts considerable doubt upon the proposition that [§ 18-7042] could have rationally been intended to prevent those very same abuses.” Moreno, 413 U.S. at 536– 37. Likewise, the State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection from these crimes than other private businesses. The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

 

 

In fact, § 18-7042 discriminates not only based on content but also on viewpoint. The natural effect of both the audiovisual recording prohibition and the misrepresentation provision found in § 18-7042(1)(c) is to burden speech critical of the animal-agriculture industry. Id. at 24. The recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.

Chief District Judge B. Lynn Winmill wrote that the law,Idaho Code § 18-7042, violates the free speech protections of the First Amendment.”In addition, the Court finds that § 18-7042 violates the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.”

The Animal Legal Defense Fund, as well as various other organizations and individuals, (collectively, “ALDF”) filedIn making this argument, the State relies on McCullen v. Coakley, 134 S.Ct. 2518 (2014). In McCullen, the Supreme Court reaffirmed its holding in Hill v. Colorado, 530 U.S. 703 (2000), that buffer zones outside of abortion clinics are content neutral. suit against the State, http://aldf.org/wp-content/uploads/2015/08/8-3-2015-ALDF-decision-ag-gag.pdf

 

Indeed, “the government’s purpose is the controlling consideration” in determining content neutrality. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) And as already discussed in the Court’s prior decision, a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.

Presumably, if a favorable video of an agricultural facility’s operations is published, a “victim” under the statute will not incur any losses. Instead, the only loss that a victim is likely to suffer from any misrepresentation or unauthorized image captured at a facility is the loss of profits generated by public outcry from the conduct depicted in an unfavorable video. Id. The imposition of such a harsh penalty for speech critical of an agricultural production facility evinces an intent to suppress such speech.

 

But § 18-7042 differs significantly from the statute upheld in McCullen. Unlike the statute in McCullen, a person cannot violate § 18-7042 merely by standing in an agricultural production facility. In fact, a person, such as an employee, would not violate § 18-7042 if he or she stood in an agricultural production facility and surreptitiously filmed the agricultural facility owner having a private conversation with his spouse. This same employee, however, could be prosecuted under § 18-7042, and face up to a year in jail, and be liable for reputational harm to the owner, if the employee, without the owner’s consent, filmed his fellow workers repeatedly beating, kicking, and jumping on cows, or using a moving tractor to drag a cow on the floor by a chain attached to her neck. In other words, § 18-7042 is nothing like the statute in McCullen because law enforcement authorities would need to view suspect video or audiotape to determine whether a particular recording violates the statute. The recording prohibition is therefore a classic example of a content-based restriction.

 

“In passing §18-7042, Idaho legislators described the concerns they believe the types of undercover investigations criminalized by the statute pose to the agricultural industry in Idaho. One senator compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.” Pls.’ SOF ¶ 8, Dkt. 75. During a committee hearing, the same senator compared undercover investigations to “terrorism, [which] has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food’s safety.” Senator Patrick, Wall Decl., Ex. A, p. 81, lns. 1–8. Defending the legislation, this senator also said, “This is the way you combat your enemies.” Senator Patrick, Wall Decl., Ex. A, p. 81, lns. 7–8.”

“Another supporter of the bill called the groups terrorists and insinuated that their investigations were defamatory: “This is about exposing the real agenda of these radical groups that are engaging in farm terrorism. Activists use intimidating tactics to damage the business of the producers and their customers. These farm terrorists use media and sensationalism to attempt to steal the integrity of the producer and their reputation, and their ability to conduct business in Idaho by declaring him guilty in the court of public opinion.” Mr. VanderHulst, Wall Decl., Ex. C, p. 30, lns. 3–8”

Any person who violates the law—whether an animal rights’ investigator, a journalist, or an employee—faces up to a year in jail. In addition, a journalist or whistleblower convicted under the law can be forced to pay publication damages pursuant to a restitution provision that requires payment for “twice” the “economic loss” a business suffers as a result of any exposé revealing animal abuse or unsafe working conditions. Id. § 18-7042(4).

A review of Idaho media reports in recent years reveals a range of undercover investigations from life on the streets, to wolf-hunting contests, to familyplanning services, to public-school safety. Pls.’ SOF ¶¶ 35-38. Such investigations into Case 1:14-cv-00104-BLW Document 110 Filed 08/03/15 Page 6 of 29 ORDER – 7 private matters, both by government and private actors, are recognized and embraced as important political speech in Idaho. Id. ¶¶ 35–38. The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass’n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042. .

The State responds that § 18-7042 is not designed to suppress speech critical of certain agricultural operations but instead is intended to protect private property and the privacy of agricultural facility owners. But, as the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern. Moreover, laws against trespass, fraud, theft, and defamation already exist. These types of laws serve the property and privacy interests the State professes to protect through the passage of § 18- 7042, but without infringing on free speech rights.

 

 

the State has submitted no evidence that the lies an undercover investigator might tell or the omissions an investigator might make to gain access or secure employment at an agricultural production facility are made for the purpose of material gain. Rather, undercover investigators tell such lies in order to find evidence of animal abuse and expose any abuse or other bad practices the investigator discovers. Thus, the proposed misrepresentations at issue here do not fit the Alvarez plurality’s description of unprotected lies because they would not be used to gain a material advantage. Id. (holding Stolen Valor Act violated First Amendment because it prohibited lies “without regard to whether the lie was made for the purpose of material gain”). Indeed, the lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest. This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect.

 

Id. “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. . . . The mere potential for the Case 1:14-cv-00104-BLW Document 110 Filed 08/03/15 Page 12 of 29 ORDER – 13 exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.” Id. at 2547-48 (citing G. Orwell, Nineteen Eighty–Four (1949) (Centennial ed. 2003)).

 

The Court likewise stands by its earlier decision finding that the audiovisual recording provision not only restricts protected speech but, in fact, discriminates based on both content and viewpoint. MDO re Motion to Dismiss, p. 20-21, Dkt. 68.

 

In January, four activists were charged with violating a Utah ag-gag law for filming a pig farm although the activists said they were careful to film from a public road. public land.http://thefreethoughtproject.com/activists-charged-filming-factory-farms-public-property-ag-gag-law/

from the above article “How did such an obscene thing come to be?  There is a little-known but powerful group called the American Legislative Exchange Council (ALEC) that introduces model bills in states across the country on behalf of its corporate members”

http://www.foodsafetynews.com/2015/01/charges-against-four-vegan-activists-under-utah-ag-gag-dropped/#.VcIjKRNVhBc  Officials subsequently dropped charges against the activists. but the arrest sent a chilling message to others who might document wrongdoing at factory farm operations

Several agribusiness corporations and organizations have been funders of ALEC such as Archer Daniels Midland, Cargill, and the National Pork Producers Council.  As with other powerful industry groups like oil and gas or Big Pharma, ALEC seeks to dismantle consumer rights using the power of state government.

ALEC drafted the “Animal and Ecological Terrorism in America” model bill just two years after 9/11, capitalizing on the fear of terrorism that was being stoked by government and media.  The model bill goes so far as to compare “extreme animal rights activists and environmental militants” to al-Qaida.
Read more at http://thefreethoughtproject.com/activists-charged-filming-factory-farms-public-property-ag-gag-law/#DzIPx24dTfKiB1I7.99

In 2012, the animal welfare group Mercy For Animals released graphic videos from an investigation of workers at Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho, kicking, punching and jumping on cows. In response, the Idaho Dairymen’s Association drafted legislation in 2014 to criminalize future undercover investigations. Though Mercy for Animals released another set of videos showing further abuse, Idaho Gov. Butch Otter signed the bill into law shortly after passage. (NPR)

“A coalition of nonprofit groups sued, including the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, American Civil Liberties Union of Idaho and Center for Food Safety, claiming the law criminalizes whistleblowing and violates freedom of speech.”  Read more here: http://www.idahostatesman.com/2015/08/03/3922838/judge-strikes-down-idaho-ag-gag.html#storylink=cpy

Read more here: http://www.idahostatesman.com/2015/08/03/3922838/judge-strikes-down-idaho-ag-gag.html#storylink=cpy

 

In 2012, the animal welfare group Mercy For Animals released graphic videos from an investigation of workers at Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho, kicking, punching and jumping on cows. In response, the Idaho Dairymen’s Association drafted legislation in 2014 to criminalize future undercover investigations. Though Mercy for Animals released another set of videos showing further abuse, Idaho Gov. Butch Otter signed the bill into law shortly after passage.

 

 

 

 

 

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