Coalition defends court overturning Idaho 'ag gag' law

Ninth Circuit's final decision could come sometime next year.

A coalition of public interest groups and journalists filed a brief in the U.S. Court of Appeals for the Ninth Circuit defending the U.S. District Court of Idaho’s August 2015 decision striking down Idaho’s “ag gag” law on the grounds that it violates the First and 14th Amendments of the U.S. Constitution, which grant freedom of speech and the right to equal protection under the law.

The Ninth Circuit will be the first appellate court in the nation to consider the constitutionality of an ag gag law. Animal rights groups say these types of laws “gag” speech because journalists, workers, activists and members of the public can be convicted for documenting animal cruelty or life-threatening safety violations.

After the briefing is completed, an oral argument date will be set, and the Ninth Circuit’s decision could be expected sometime next year. Members of the coalition also have lawsuits pending in federal district courts challenging the constitutionality of similiar laws in Utah and North Carolina.

Idaho’s law was designed to protect farmers from animal activists seeking to conduct video surveillance, obtain records or gain employment with intent to cause economic harm. The law was the seventh bill of its kind nationally.

The Idaho law would have banned an employee on a farm from taking a picture without permission of any part of his or her work – such as animal cruelty, food safety violations or even a blocked fire escape – with the potential to go to jail.

In the court opinion, the judge stated, “The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals and the impact of business activities on the environment.”

The court also found that the statute violates the Equal Protection Clause because it was motivated, in substantial part, by disposition towards animal welfare groups and because it “impinges on free speech — a fundamental right.”

The bill was advanced by the Idaho Dairymen’s Assn. and others when an undercover video on a dairy farm was released by Mercy for Animals. Specifically, the Idaho bill prohibits anyone not employed by an agricultural production facility to enter or obtain records of the facility by “force, threat, misrepresentation or trespass.” It also prohibits making video or audio recordings of conduct at the facility.

The coalition includes the Animal Legal Defense Fund, American Civil Liberties Union of Idaho, Center for Food Safety, People for the Ethical Treatment of Animals, Farm Sanctuary, River’s Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment, the political journal CounterPunch, Farm Forward, journalist Will Potter, professor James McWilliams, investigator Monte Hickman, investigative journalist Blair Koch and undercover investigations consultant Daniel Hauff. The plaintiffs are represented by in-house counsel Leslie Brueckner of Public Justice, Justin Marceau and Alan Chen of the University of Denver Sturm College of Law and the law firm of Maria E. Andrade.

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