Judge Preserves ‘Ag-Gag’ Law Challenge in Idaho

BOISE, Idaho (CN) - Idaho's "ag-gag law," new legislation criminalizing the secret filming of "agricultural production," may be unconstitutional, a federal judge ruled.

Signed into law as Senate Bill 1337 on Feb. 28, the ag-gag law provides a fine and possible prison term for those who secretly film "agricultural production."

The Animal Legal Defense Fund (ALDF) led a group of advocates and journalists who challenged the law this past March, allegeing that Idaho politicians ignored the First Amendment to protect corporate interests.

Footage of alleged animal abuse at a dairy in Wendell, Idaho, that appeared on prime-time television prompted passage of the law as an "emergency measure," according to the complaint.

Gov. C.L. "Butch" Otter and Attorney General Lawrence Wasden moved to dismiss the complaint in April for failure to state a claim, but U.S. District Judge B. Lynn Winmill on Thursday said the opponents may have a case First Amendment and equal protection clause.

While the protection of private property is a valid concern, it does not necessarily justify the restriction of free speech, the court found.

"The First Amendment requires more than the invocation of a significant government interest; it requires that the restriction's benefits be balanced against the burden on protected speech," Winmill wrote. "The state therefore must justify a need to serve its interests in protecting private property through targeting protected speech."

Gov. Otter is not a proper defendant, however, and the ALDF does not have a case over a provision of the law that involves the intentional damage to agricultural facilities, livestock, workers and equipment.

As to the claim that the ag-gag law unfairly singles out activists, Winmill agreedthat laws based on bare animus violate the equal protection clause."

"ALDF alleges, as a factual matter, that the Idaho legislators acted with animus against animal rights activists in passing section 18-7042," the 33-page ruling states. "If ALDF's allegations of animus prove true, the court must skeptically scrutinize any offered justifications for section 18-7042 to determine whether bare animus motivated the legislation or whether the law truly furthers the offered purposes."

Among legislators who said the agricultural industry has a right to protect its interests, the ALDF noted in its complaint that Sen. Jim Patrick, R-Twin Falls, likened activists to "marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission."

Patrick added: "Terrorism has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food's safety," according to the complaint.

The ALDF may be able to show that the new law stymies whistle-blowing activity that could eventually affect all industries and leave consumers unprotected, according to the ruling. "The court concludes that the state's passage of section 18-7042 presents ALDF with the immediate dilemma of choosing between complying with [the law] and risking prosecution under the challenged provision by engaging in whistleblower conduct it says federal law explicitly encourages and protects," Winmill wrote. "ALDF's preemption claims are therefore ripe for review."

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