Idaho’s Ag-Gag Law Ruled Unconstitutional

           BOISE (CN) – Idaho’s “ag-gag” law, which criminalizes undercover investigations of agricultural operations, restricts free speech and violates the Constitution’s equal protection clause, a federal judge ruled Monday.
     U.S. District Judge B. Lynn Windmill cited Upton Sinclair’s 1906 novel “The Jungle” in granting partial summary judgment to the Animal Defense Fund et al., who challenged the legislation.
     Sinclair gathered material for his novel by hiding his identity and signing on as an employee at a Chicago meatpacking plant where he exposed horrendous labor conditions.
     It’s the same tactic used by Los Angeles-based Mercy for Animals, which exposed the “brutal abuse of cows” at Bettencourt Dairies’ Dry Creek Diary 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 Idaho’s ag-gag law.
     The law, passed as an “emergency measure,” makes it illegal to secretly film “agricultural production,” and punishes it by up to a $5,000 fine and a year in prison.
     Supporters said the industry has a right to protect its interests.
     State Sen. Jim Patrick, R-Twin Falls, last year compared animal activists and whistleblowers to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”
     He added: “Terrorism has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food’s safety.”
     Eschewing terrorism, animal rights groups filed a 52-page lawsuit against Idaho and Gov. Butch Otter in March 2014, the month after Otter signed HB 1337 into law. It was codified as Idaho law Title 18, Chapter 70, § 18-7042 .
     The long list of plaintiffs includes Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the Center for Food Safety, the American Civil Liberties Union of Idaho and the Western Watersheds Project, news journal CounterPunch, journalist Will Potter, freelance Idaho journalist Blair Koch and agricultural investigations expert Daniel Hauff.
     Mercy for Animals is not party to the lawsuit.
     Judge Winmill partially denied the state’s April 2014 motion to dismiss for failure to state a claim, preserving the plaintiffs’ First Amendment and equal protection claims in a September 2014 order.
     The plaintiffs filed a motion for partial summary judgment the following November.
     Winmill wrote that if Upton Sinclair used the technique he employed to write “the Jungle” in Idaho today, it “would expose him to criminal prosecution under § 18-7042.”
     The state claimed the law was not meant to suppress free speech but to protect private property and privacy.
     Winmill rejected that, citing laws that already provide those protections.
     “As the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter,” he wrote in the 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 § 18-7042 but without infringing on free speech rights.”
     Winmill found that the law violates the First Amendment and 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.”
     As for equal protection, Winmill said, the state failed to show why the dairy industry and other agricultural operations “deserve more protection than other private businesses.”
     Idaho said that agriculture is vital to its economy and that agricultural operations are common targets for undercover investigations.
     Winmill rejected that. “The state’s logic is perverse,” he wrote. “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.”
     Citing the U.S. Supreme Court’s 1927 ruling in Whitney v. California, Winmill wrote: “Society has the right and civic duty to engage in open, dynamic rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.”
     He concluded: “Far from being tailored to a substantial governmental interest, § 18-7042 classifies activities protected by the First Amendment based on content. Therefore, under the Equal Protection Clause, it cannot stand.”
     In Whitney v. California, the Supreme Court upheld California’s Criminal Syndicalism Act of 1919, under which Anita Whitney was convicted for helping to organize the Communist Party of America, which called for the violent overthrow of the government. Justice Louis Brandeis wrote a famous defense of free speech in concurrence to the unanimous Supreme Court ruling.     
     ALDF lead attorney, Matthew Liebman, said he was impressed with Winmill’s order.
     “It was, of course, a great decision, well reasoned and written,” he said. ‘It vindicates the people’s right to know how animals are being treated on factory farms.”
     He said the decision could set a precedent in other states where similar laws either exist or are being considered.
     “This decision is limited to Idaho and not binding anywhere else, but the practical affect should reverberate throughout the industry and make them think twice about pushing their statutes in other states,” Liebman told Courthouse News on Tuesday. “This law (in Idaho) was part of the industry’s concerted effort to silence critics.”
     There are seven other states that that have very similar laws, including Montana, North Dakota, Utah, Kansas, Iowa, Missouri and North Carolina, according to Liebman, who said ag-gag was defeated in at least 18 states.
     He added that over 30 bills have been introduced in state legislatures in support of criminalizing whistleblowing activity at agricultural facilities.
     Idaho has 30 days to file an appeal, which would be heard by the Ninth Circuit Court of Appeals in San Francisco, but there has been no indication whether the state plans to do so.
     “I haven’t heard anything one way or another, but we are prepared to defend it (the decision) on appeal,” Liebman said. “I think the state should realize that and move on, and save the taxpayers money trying to suppress people’s rights. Either way, we will continue to fight.”
     In the meantime, the “court will issue an order and judgment that would enjoin enforcement of the statute and prohibit the attorney general from bringing lawsuits,” Liebman said.
     Clay Smith, for the Idaho Attorney General’s office, said he could not comment on whether the state will appeal the decision.
     Press liaison Todd Dvorak said “all I can say right now is that we are reading the decision and considering the options. We haven’t made a decision on how to proceed.”

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