SEATTLE (CN) – Attorneys for Idaho asked the Ninth Circuit to reinstate an “ag-gag” law criminalizing undercover investigations of agricultural operations, arguing there is no First Amendment right to record activities on private property.
A lower court ruled the ag-gag law restricts free speech and violates the Constitution’s equal protection clause.
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
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 said the law is unconstitutional “because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.”
Idaho Deputy Attorney General Carl Withroe asked three-judge appellate panel Friday to reinstate the law.
“There is no First Amendment right to record activities,” Withroe argued.
The panel immediately peppered Withroe with questions about how the law would restrict journalists.
“If you do a puff piece that extolls the benefits of agriculture, it’s not a crime,” Circuit Judge Richard Tallman observed.
Circuit Judge M. Margaret McKeown said it appeared the law was targeting “reporters doing exposés.”
Winthroe said the law only requires a person recording activities to get permission from the property owner and doesn’t restrict “unwanted coverage” in a news story.
“The law does not outlaw whistleblowing,” Winthroe added.
McKeown seemed skeptical and said it was “odd” the law restricted audio and video recording when a person can already be prosecuted for trespass if they were unwanted on private property.
Justin Marceau, attorney for the Animal Legal Defense Fund, urged the panel to uphold the lower court’s ban.
He said the video that exposed “horrific criminal animal abuse” would be illegal under the law.
“What you’re saying is sometimes investigators need to use subterfuge,” McKeown said.
Marceau said it was broader than that and the law suppresses free speech.
He said the purpose of the law was to prosecute investigations of agricultural misdeeds and pointed out the double-damage restitution provision.
Circuit Judge Carlos Bea also sat on the panel.
In addition to Idaho, Utah, North Carolina, Missouri, Kansas, North Dakota, Montana and Iowa have passed ag-gag laws.