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Jack Wagons or Whistleblowers? Utah Ag-Gag Challenge Escalates in Cross-Motions for Summary Judgement

Posted  June 17, 2016

By Rosie Dawn Griffin

Dead and dying hens packed tight into wire battery cages; sick and injured dairy cows dragged and prodded into the food supply by forklift; sows fed a mash of ground up piglets killed by a highly contagious intestinal disease: industrial animal agriculture should be ashamed of itself. Make no mistake—it is.

According to a 2012 lawsuit filed by the Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animal (PETA), and others, industrial agriculture goes to extraordinary—and unconstitutional—lengths to keep the meat-eating, milk-drinking, egg-scrambling public blissfully ignorant of the industry’s sins. The suit, the first legal challenge of its kind when filed, took Utah to court for infringing on the free speech rights of whistleblowing activists, investigators, and journalists for passing House Bill 187, a law that explicitly outlaws smuggling cameras or other recording devices into slaughterhouses and factory farms and disseminating covertly taped footage.

In cross-motions for summary judgment filed at the end of May, the parties laid out their best arguments challenging and defending Utah’s ag-gag law. Plaintiffs continue to assert the act violates the First and Fourteenth Amendments to the U.S. Constitution because it is overbroad and content- and viewpoint-discriminatory, discriminatorily burdens the exercise of the fundamental right of free speech, and was passed with clear animus against animal protection advocates. Plaintiffs framed the law as a targeted attack against animal rights groups—whom congressmen called “animal rights terrorists” and “jack wagon[s]”—and an affront not only to the Constitution, but to this country’s long history of investigative journalism, activism, and whistleblowing that has time and again exposed serious and dangerous wrongdoing and spurred into action those with the power to protect our food supply.

For its part, Utah challenged the suit on standing and refuted plaintiffs’ First and Fourteenth Amendment claims, arguing the First Amendment does not protect “bugging, lying to gain access, employment-based surreptitious recording, and trespassing,” and noting that even if such acts are considered speech, House Bill 187 constitutes a permissible time, place, and manner restriction, is narrowly tailored, leaves open ample channels for communication, and is not overbroad. Responding to plaintiffs’ Fourteenth Amendment challenge, the state further argued the law does not burden a fundamental right, is supported by multiple rational bases, and is not invalidated by any legislative animus. On the PR front, Defendants claim the act is justified to prevent the spread of infectious diseases in animal agriculture, protect workers, and guard the safety of the food supply…behind closed doors.

It remains to be seen how Judge Robert Shelby will rule in this matter, but animal rights and food safety activists are hopeful given the August 2015 ruling by Chief Judge for the District of Idaho, Lynn Winmill, who found similar arguments unpersuasive when he struck down an Idaho ag-gag law because its content and viewpoint-based restrictions could not survive strict scrutiny.

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