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The Beginning of the End for Ag-Gag Laws?

Posted  September 11, 2014

By Gordon Schnell

In an eagerly awaited decision out of federal court in Idaho last week, Chief Judge B. Lynn Winmill has dealt a mighty blow to proponents of the so-called “Ag-Gag” laws several states have passed in recent years to ensure what goes on in factory farms, stays in factory farms.  At issue in this case is the constitutionality of the Idaho statute and whether — in criminalizing undercover investigations and videos at these facilities — it violates the Free Speech and Equal Protection Clauses and is preempted by federal whistleblower laws.  Judge Winmill did not rule on these ultimate issues.  He did, however, squarely deny the State’s motion to dismiss the lawsuit, raising serious questions as to the ultimate viability of these anti-whistleblower laws.

The challenge to the Idaho Ag-Gag law comes from the Animal Legal Defense Fund (ALDF) and a who’s who listing of animal rights, free speech and environmental groups.  They claim the statute restricts free speech, is founded on a “bare animus” towards animal rights activists, and is preempted by several federal laws specifically designed to encourage and protect whistleblowers.  Judge Winmill allowed all three challenges to move forward, finding them legally supported by the facts ALDF and its co-plaintiffs have alleged in the complaint.  Here’s how the judge ruled on each of these claims.

Free Speech (First Amendment).  Idaho argued the Ag-Gag law does not implicate the First Amendment because it is generally applicable and aimed at wrongful conduct, not speech.  Judge Winmill disagreed.  As the ALDF plaintiffs have alleged it, “the law was not designed as a generally applicable prohibition on fraud or trespass or conversion, but rather as an indirect penalty for criticizing animal agriculture.”  And its ban on certain misrepresentations (like lying to gain access to the facility) and on taking undercover videos are both forms of “expressive activity” that fall within the umbrella of “protected speech.”  As the judge made clear, “the First Amendment is a value-free provision whose protection is not dependent on the truth, popularity or social utility of the ideas and beliefs which are offered.”

Judge Winmill took his First Amendment analysis one step further, finding the law a content-based restriction which “on its face” targets one form of speech — complaints by animal activists.  The judge pointed to the legislative history — with its many references to these individuals as “terrorists,” “extremists,” “vigilantes” and “marauding invaders” — to further buttress his finding.  As such, Judge Winmill concluded Idaho’s Ag-Gag law “must survive the highest level of scrutiny to pass constitutional muster.”

Equal Protection (Fourteenth Amendment).  Idaho argued whatever animus might be behind the passage of the law is irrelevant for equal protection purposes if there exists some rational basis for the legislation (such as protecting farming operations).  Judge Winmill, however, pointed to a recent shift in this area of the law which requires courts to evaluate the “essence” of the challenged statute, looking to its “design, purpose and effect.”  Having done that, the judge found the ALDF plaintiffs’ allegations support an animus toward animal-rights activists.  He was quick to point out this does not necessarily mean the Equal Protection Clause has been violated and the ALDF plaintiffs “may face a very difficult battle” in proving it has been.  But, he emphasized that “to be rational, a law must serve a ‘legitimate’ end, and antipathy can never be a legitimate end.”

Federal Preemption.  Finally, the ALDF plaintiffs claim the Ag-Gag law is preempted by the whistleblower retaliation provisions of the False Claims Act, the employee protection provisions of the Food Safety Modernization Act, and the employee protection provisions of the Clear Water Act.  They argue the Idaho law criminalizes the very same whistleblowing activity these three federal statutes encourage and protect.  Rather than deal with this preemption challenge head-on, Idaho argued it was not ripe for adjudication because there is no direct and immediate conflict presented by the Idaho law and these federal statutes.  Judge Winmill disagreed, finding an “immediate dilemma” for the ALDF plaintiffs in having to choose between complying with the Ag-Gag law or risk being prosecuted for engaging in what they view as federally protected and encouraged whistleblower activity.

In ruling against Idaho on these three principal issues, Judge Winmill repeatedly stressed he was not ruling on the ultimate merits of the plaintiffs’ constitutional challenge.  He was only allowing the case to proceed into the factual discovery phase of the litigation.  However, the significance of this decision cannot be overlooked.  It sets a powerful legal framework for invalidating these types of laws where it can be shown their principal motivation is not about protecting farming operations but silencing whistleblowers instead.  We can surely expect this decision to prompt similar challenges to the Ag-Gag laws on the books in other states.  In fact, there is just such a challenge pending in Utah.  Stay tuned…. 

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