August 6, 2015

Will Idaho Be the End of Ag-Gag?

By Molly Knobler and Gordon Schnell

Animal rights activists don’t get many legal wins, but this is a big one.  On Tuesday in a 28-page, carefully reasoned opinion that pulled no punches, Chief Judge for the District of Idaho Lynn Winmill found Idaho’s “Ag-Gag” law unconstitutional under both the Free Speech and Equal Protection clauses.  This was the law specifically aimed at criminalizing whistleblowers trying to expose animal abuse and mistreatment at factory farms and other Big-Ag operations in Idaho.  States with similar legislation should take notice.  A similar type of legal challenge is likely just around the corner.

The Idaho “Ag-Gag” law was all about blocking legitimate whistleblower activity.  At its core, the statute made it a crime to “interfere with agricultural production” in any of the following ways:

  • Entering an agricultural production facility by misrepresentation or trespass;
  • Obtaining records of an agricultural production facility by misrepresentation or trespass;
  • Obtaining employment with an agricultural production facility by misrepresentation, with the intent to cause economic injury to the facility’s operations; or
  • Entering an agricultural production facility not open to the public and, without express consent from the facility’s owner, making audio or video recordings of the conduct of the facility’s operations.

It is no accident these statutory proscriptions would necessarily cover the conduct of the classic animal rights whistleblower.  As Judge Winmill’s analysis highlights, the statute’s legislative history laid bare the clear intent to shut down the work of animal rights activists, referred to by various Congressmen as “marauding invaders,” “terrorists,” “extremists,” “vigilantes,” and “enemies.”  This naked animus towards a particular group and viewpoint formed a key basis for Judge Winmill’s decision.

Judge Winmill was not swayed by the state’s purported justifications for the restrictions as necessary to protect private property and the privacy of owners of agricultural facilities.  Instead, he found the law to be a content and viewpoint-based restriction that cannot survive strict scrutiny.  In particular, he saw the law as a direct attack on whistleblowers: “it poses a particularly serious threat to whistleblowers’ free speech rights” and circumvents long-established “whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern.”

Given the significant overlap in language and design between Idaho’s law and those still on the books in other states it is likely that the Idaho challenge will be taken on the road.  Judge Winmill’s thorough examination of the issues and strongly-worded opinion give animal advocates a powerful new weapon as they take on remaining ag-gag laws in Kansas, Missouri, Utah, Montana, Wyoming, North Dakota and North Carolina.  If his decision is upheld on appeal, this could indeed be the end of the mighty Ag-Gag.  Stay tuned.

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