9th Circuit Strikes Down Bulk of Idaho’s ‘Ag-Gag’ Law

SEATTLE (CN) – A Ninth Circuit panel on Thursday struck down provisions of Idaho’s “ag-gag” law, finding most parts of the law that criminalizes undercover investigations of agricultural operations violate the First Amendment.

The three-judge panel agreed with most of a lower court’s ruling, saying Idaho’s “Interference with Agricultural Production” law is overbroad, targets investigative journalists and criminalizes innocent behavior.

But Thursday’s ruling upheld the constitutionality of the law’s prohibition on obtaining employment by misrepresentation with the intent to cause economic or other injury, reversing the lower court, and vacated a permanent injunction against enforcement of the law.

The Idaho Legislature passed the law in 2014, after Los Angeles-based Mercy for Animals went undercover to expose animal abuse at Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho, in 2012.

The video shows dairy employees using a tractor and chain to drag a cow by its neck, and workers beating, kicking and jumping on cows.

The video drew national attention when it was broadcast on ABC News’ “Nightline.” The Idaho Dairymen’s Association responded by drafting and sponsoring the law.

Passed as an “emergency measure,” the ag-gag law makes it illegal to secretly film “agricultural production.” Violators face up to a $5,000 fine and a year in prison.

The Animal Legal Defense Fund, civil rights groups and journalists sued to overturn the law in 2014.

U.S. District Judge B. Lynn Windmill found the law unconstitutional “because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right,” and approved a permanent injunction against enforcement.

The appellate panel’s 56-page ruling upholds Windmill’s decision to strike down the recording ban, calling it a “classic example of a content-based restriction that cannot survive strict scrutiny,” Circuit Judge M. Margaret McKeown wrote on behalf of herself and Circuit Judge Richard Tallman.

“We easily dispose of Idaho’s claim that the act of creating an audiovisual recording is not speech protected by the First Amendment. This argument is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not,” McKeown wrote.

The panel also affirmed a ban on making misrepresentations to enter a production facility, using an analysis of the Supreme Court’s decision in United States v. Alvarez which addressed the First Amendment and false speech.

In Alvarez, the Supreme Court examined the Stolen Valor Act, a statute criminalizing false claims that the speaker had received the Congressional Medal of Honor and found a blanket prohibition of lies violates the First Amendment and restricts free speech.

The panel allowed part of the law that criminalizes obtaining records of an agricultural production facility by misrepresentation to stand, saying it is aimed at conduct that has long been prohibited in Idaho.

“Acquiring records by misrepresentation results in something definitively more than does entry onto land – it wreaks actual and potential harm on a facility and bestows material gain on the fibber,” McKeown wrote.

A provision that criminalized knowingly obtaining employment with an agricultural production facility with the intent to cause economic or other injury, struck down by the lower court, was also reinstated by the panel.

Circuit Judge Carlos Bea dissented in part, saying a property owner has the “right to exclusive possession of the land – the right to exclude anyone from entry, at any time, and for any reason at all or indeed for no reason.”

Bea disagreed with the majority analysis of Alvarez, saying there is a difference between lying about a particular subject and lying to enter a particular type of property.

The panel ordered the permanent injunction to be modified in accordance with their decision.


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