Idaho Ag-Gag Law Found Unconstitutional by Chief Judge of Federal District Court

Last June, Iexplained toBoise State Public Radio why Idaho may have trouble defending its AgriculturalSecurity Act, which many have dubbed an "ag-gag" law. That interview can be found here: http://boisestatepublicradio.org/post/why-idaho-may-have-trouble-defending-its-ag-gag-law. A federal judge has now ruled on the issue.

On Monday, August 3, 2015,the Chief Judge of the United States DistrictCourt for the District of Idaho, B. Lynn Winmill, ruled that Idaho's ag-gag law,whichcriminalized certain types of undercover investigations at agricultural facilities, was unconstitutional. Chief Judge Winmill produced a structurally sound opinion thatcould be provedifficult to overturnif appealed.

In Animal Legal Defense Fund v. Otter, several groupschallenged the constitutionality of Idaho Code § 18-7042,which allowed journalist or animal rights investigator to be convicted for not disclosing their media or political affiliations when requesting a tour of or applying for employment at a dairy farm or industrial feedlot. Section 18-7042 also allowed an employee to be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission. Any person who violated § 18-7042—whether an animal rights’ investigator, a journalist, or an employee—faced up to a year in jail. In addition, a journalist or whistleblower convicted under § 18-7042 could have been forced to pay damages pursuant to a restitution provision that required payment for “twice” the “economic loss” a business suffered as a result of revealing animal abuse or unsafe working conditions.

Chief Judge Winmill ruled § 18-7042 unconstitutional under both the First Amendment and the Equal Protection Clause.

First Amendment

Chief Judge Winmill held that § 18-7042 was both a content-based and a viewpoint-based restriction on speech. Specifically, the court ruled that § 18-7042 targeted undercover investigators who intended to publish videos through the press. The court also found that §18-7042 sought to suppress speech critical of animal agricultural practices.

Chief Judge Winmill cited to several portions of the legislative record to support the holding that § 18-7042restricted speechbased on both content and viewpoint. Specifically, supporting members of the Idaho legislature made derogatory statements about animal rights groups by comparing them to terrorists, persecutors, vigilantes, blackmailers, and “invading marauders who swarm[ed] into foreign territory and destroy[ed] crops to starve foes into submission.” Other legislators accused animal rights groups of being “extreme activists who contrive[ed] issues solely to bring in donations or to purposely defame agricultural facilities.” Based on this testimony and the text of the statute, the court found that the purpose of § 18-7042 was to control a particular message about Idaho’s agricultural businesses.

Because § 18-7042 restricted speech based on content and viewpoint, the highest level of constitutional review, strict scrutiny, applied.

Strict scrutiny, required Idaho to demonstrate that § 18-7042 was necessary and narrowly tailored to achieve a compelling government interest. Idaho argued that the State had a “compelling” government interest to protect “the property and privacy interests of agricultural production facilities.” The court found this was not compelling within the context of § 18-7042. Agricultural production facilities already suffered numerous intrusions on their privacy and property rights due to the extensive regulations that govern food production and the treatment of animals. Moreover, the public has an interest in the safety of the food supply, the safety of workers, and the humane treatment of animals.

The court found that it would contravene strong First Amendment values to afford agricultural business extra protection against public scrutiny. In short, Idaho had no legitimate or compelling interestto suppressspeech on agricultural production and manufacturing.

Even if Idaho advanced a compelling government interest, § 18-7042 was neither necessary nor narrowly tailored to serve that interest. Chief Judge Winmill found that § 18-7042 was too broad because it not only restricted more speech than necessary, it posed a particularly serious threat to whistleblowers’ free speech rights. Specifically, § 18-7042 circumvented long-established defamation law and whistleblowing statutes by criminalizing true and accuratepublications on matters of public concern. Such an expansive reach was hard to reconcile with basic speech, whistleblower, and press rights. Speech on matters of public concern, i.e. food production,was, and continued to be,at “the heart of the First Amendment's protection.”

Equal Protection

For the reasons stated above, § 18-7042 also violated the Fourteenth Amendment's Equal Protection Clause.

Chief Judge Winmill rejected Idaho’s argument that agricultural production facilities deserved more protection that other businesses because of the importantrole agriculture plays in Idaho’s economy. The court also rejected the contention that agricultural production facilities deserved more protection because they were often targets of undercover investigations.

Accordingto the court, powerful industries do not deserve more government protection than smaller industries.Additionally, Idaho has no interest in protecting or shielding industries from negative publicity or other harms caused by that industries' wrongdoing. Protecting the private interests of a powerful industry (especially one thatproduced the public’s food supply) against public scrutiny was not a legitimate government interest. Even if it were, Idaho failed to provide a legitimate explanation for why agricultural production facilities deserved more protection than other private businesses.

The court alsoheld that in passing § 18-7042, the legislature may have been motivated by “a bare congressional desire to harm a politically unpopular group." Chief Judge Winmill found that the legislative record overwhelming demonstrated that § 18-7042 was intended to silence animal welfare activistsand other whistleblowers who sought to publish speech critical of Idaho’s agricultural production industry. (With regards to animal rights groups many of Idaho's legislators made this intent quite clear.)

Existing laws adequately protected agricultural facility owners from trespass, conversion, and fraud. The effect of § 18-7042was todiscriminate in its purposeandon its face against animal welfare groups and other undercover investigators in the agricultural industry. If equal protection meant anything, itwas that animus was an improper motivation for a law.

Finally, § 18-7042 discriminated based on the exercise of a fundamental right, specifically the right to freedom of speech and press. As previously discussed, the central problem with § 18-7042 was that it distinguished between different types of speech and conduct based on content and viewpoint.

The court provided two examples todemonstrate how § 18-7042's operative distinction was basedon the message that prohibited speech or conductconveyed. First, an employee could make an unauthorized recording of an agricultural facility owner’s children visiting the facility without running afoul of § 18-7042, but the same employee could not make an unauthorized recording of workers abusing animals. Second, an undercover journalist who misrepresented his identity to secure a job at an agricultural production facility so that he could publish a laudatory piece about the facility would not violate the law, but an undercover journalist who misrepresented his identity to secure a job at the same facility seeking to expose illegal, inhumane, or unsafe behavior would violate the law.

Chief Judge Winmill concludes that “under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”

Unless post judgment review or reconsideration is sought in the district court,Idahohas thirty (30) days from the date of Chief Judge Winmill's entry of final judgment to file a notice of appeal in the Ninth Circuit Court of Appeals.

Update: On December 11, 2015, Idaho filed a Notice of Appeal in the Ninth Circuit. Links to amicus briefs can be found at the end of this page.