Free-Speech Concerns|Dog Wyo. ‘Ag-Gag’ Law

     CHEYENNE, Wyo. (CN) – Interest groups have scored an early victory in their fight to preserve civil rights after a federal judge ruled Wyoming’s data-trespass laws may be “a façade for content or viewpoint discrimination.”
     The “ag-gag” statutes, passed in early 2015, impose criminal and civil penalties for individuals who gather information about or take photographs of land or resources and then deliver or plan to deliver the data to government agencies.
     Penalties include up to one year in prison and a $1,000 fine for first-time offenders.
     U.S. District Judge Scott Skavdahl on Tuesday expressed skepticism as to whether the laws are constitutional.
     “The court has serious concerns and questions as to the constitutionality of various provisions of these trespass statutes,” he wrote in a 38-page order.
     A group of conservationists, animal advocates, academics and the press filed a 71-page lawsuit in September, alleging violations of the petition and free speech clauses of the First Amendment and the equal protection clause of the Fourteenth Amendment. The groups also argued the data-trespass laws are preempted by federal law.
     Plaintiffs include Western Watersheds Project, the National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals and the Center for Food Safety.
     The groups say the laws prevent them from collecting information about animal abuse on farms and ranches and about food safety, and make it illegal to publish photos of Wyoming’s majestic natural scenery.
     They say the laws were passed under purported concern over trespassing but are really aimed at protecting business interests.
     “The Wyoming Legislature was not coy about its purposes,” the groups say in their complaint. “The data censorship statutes were enacted after Wyoming livestock interests sued Western Watersheds Project for allegedly trespassing while collecting water quality samples. Although the statutes are clothed in the language of anti-trespass statutes, they have little in common with Wyoming’s traditional trespass laws.”
     The state defendants, including Gov. Matt Meade and Attorney General Peter Michael, filed a motion to dismiss the complaint in October.
     Judge Skavdahl granted the motion as to Meade and also dismissed the groups’ federal preemption claim, but preserved the First and Fourteenth Amendment claims.
     Natural Resources Defense Council attorney Michael Wall told Courthouse News on Wednesday the state’s new law is clearly unconstitutional, an assertion supported by Skavdahl’s order.
     “I think the judge’s order recognizes that the government can’t avoid the protection of the First Amendment just by calling something ‘trespass,'” Wall said. “You can’t pass a law for people of one religion or another. You can’t make a law applicable when people are communicating information to the government. They attempted to criminalize this and it is a concern.”
     The National Press Photographers Association is “very pleased with the common-sense order by the judge upholding press freedoms at this point in the litigation,” its attorney Mickey Osterreicher said in a statement.
     Meanwhile, Western Watersheds Project executive director Travis Bruner praised Skavdahl’s “clear understanding” of the stakes of Wyoming’s ag-gag law.
     “The legal challenge withstood its first test in court, and I believe that the judge demonstrated a clear understanding of what is at stake if these laws are allowed to stand: selective enforcement, penalties for certain types of speech, and unequal protection for American citizens who seek to protect natural resources,” Bruner said.
     A similar law was stricken down in Idaho earlier this month, after U.S. District Judge B. Lynn Winmill ruling the Gem State’s ag-gag law unconstitutional.
     “As the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter,” Winmill wrote in a 29-page order. “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 [the ag-gag law] but without infringing on free speech.”

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