In 2014, an undercover investigator working for Mercy For Animals documented horrific animal cruelty at the Dry Creek Dairy in Hansen, Idaho. Video of the abuse was released nationally. The owners of the dairy instituted reforms and the abusers were prosecuted. But the law that was passed this time, within months of the video’s release, protects neither the animals nor the food supply, but the agriculture industry

Gordon, Stacey L.

English

University of Montana

University of Montana ScholarWorks at University of Montana Faculty Journal Articles & Other Writings Faculty Publications 8-24-2015 Idaho's Ag-Gag Law Goes Down And Other States May Be Next Stacey L. Gordon Alexander Blewett III School of Law at the University of Montana, stacey.gordon@umontana.edu Follow this and additional works at: https://scholarworks.umt.edu/faculty_barjournals  Part of the Agriculture Law Commons, and the Animal Law Commons Let us know how access to this document benefits you. Recommended Citation Stacey L. Gordon, Idaho's Ag Gag Law Goes Down and Others May Be Next, Law360 (Aug. 24, 2015), http://www.law360.com/articles/694583/idaho-s-ag-gag-law-goes-down-and-other-states-may-be-next. This Article is brought to you for free and open access by the Faculty Publications at ScholarWorks at University of Montana. It has been accepted for inclusion in Faculty Journal Articles & Other Writings by an authorized administrator of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. Stacey L. GordonPortfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.comPhone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.comLaw360, New York (August 24, 2015, 3:36 PM ET) -- In 1904, UptonSinclair misrepresented himself in order to get a job in Chicago’smeatpacking industry so he could conduct an undercoverinvestigation of the working conditions. The animal cruelty andmeat-handling procedures he recounted in the 1907 novel, TheJungle, led to the passage of the federal Meat Inspection Act andPure Food and Drug Act.In 2014, an undercover investigator working for Mercy For Animalsdocumented horrific animal cruelty at the Dry Creek Dairy in Hansen,Idaho. Video of the abuse was released nationally. The owners of thedairy instituted reforms and the abusers were prosecuted. But thelaw that was passed this time, within months of the video’s release,protects neither the animals nor the food supply, but the agricultureindustry.The “interference with agricultural production” law[1] criminalizes entering an “agriculturalproduction facility” by “force, threat, misrepresentation or trespass,” obtaining records oremployment the same way, making video or audio recordings of an agricultural productionfacility’s operations without consent, or damaging the facility’s “operations, livestock, crops,personnel, equipment or premises.”Animal Legal Defense Fund and other plaintiffs filed a case challenging the constitutionality ofthe prohibitions on misrepresenting oneself to obtain employment at an agricultural productionfacility and intentionally causing physical damage or injury to a facility’s operations. The courtdismissed the latter challenge, holding the plaintiffs did not allege any intent to violate theprohibition and therefore had no standing to challenge it.[2] Unpersuaded by defendants’ claimthat the law prohibits conduct, not speech, the court allowed the plaintiffs’ other FirstAmendment and equal protection claims to proceed. The ALDF’s two remaining challenges wereagainst the prohibition against misrepresentation to gain employment and the prohibitionagainst recording without consent. In early August, the court overturned the misrepresentationto gain employment and recording without consent provisions of the statute.[3]First Amendment ChallengesTaking first the misrepresentation challenge, the court addressed the state’s reliance on U.S. v.Alvarez, in which the U.S. Supreme Court struck down the Stolen Valor Act, which made it acrime to lie about receiving military decorations. The state tried to distinguish Alvarez, claimingthat the interference with agricultural production statute criminalized not just lies, but liesaccompanied by conduct. The court was unpersuaded and further noted that Alvarez held thatthe government could criminalize only lies that caused “legally cognizable harm.” The courtthen determined that any harm caused by undercover investigators would not be caused by themisrepresentation used to gain employment but by publication of a story about the facility, andthat any harm caused by a true story is not the kind of harm contemplated by the holding inAlvarez. The court returned to the story of Upton Sinclair and held that § 18-7042 punishesIdaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage1 of 4 8/24/2015 2:14 PMand suppresses the speech of undercover investigators and whistleblowers who raise issues ofimportance to the public: food safety, treatment of farm animals, working conditions ofagricultural workers. The court noted that Upton Sinclair could have been punished under thislaw.Turning to the recording provision, the court found that provision further violates the FirstAmendment by impermissibly regulating content-based speech. Although the state argued thatthe statute is content neutral because it regulates where protected speech occurs, not what issaid, again, the court was not persuaded, finding that the law does, indeed, repress speechbased on the content of the recording since it only prohibits recordings of the agriculturalfacility’s operations. The court further reiterated its earlier findings that the purpose of thestatute was to suppress speech critical of agricultural practices, in essence an impermissibleregulation of particular ideas.The state argued that the privacy and property rights superseded other interests, but the courtheld that the state failed to show a compelling interest and that the statute was not narrowlytailored, thus failing the strict scrutiny test. Highlighting again the public’s strong interest infood safety, worker safety and the humane treatment of animals, the court easily found thestate had no compelling interest. Furthermore, given that Idaho has laws prohibiting fraud,trespass, defamation and stealing documents, the court found that the law is not narrowlytailored. The state’s argument that the statute is narrowly tailored because it regulates speechonly in a private forum failed, again because food production is not private and instead is amatter of great public concern.Equal Protection ChallengeThe First Amendment argument in this case was a foreseeable challenge; the equal protectionargument less so. There were two prongs to the court’s analysis. The state had only to showthat the discrimination in the statute, treating undercover investigators and whistleblowers inagricultural production facilities differently than whistleblowers in any other business, wasrationally related to a legitimate government interest. The state argued that agriculturalproduction deserves extra protection because agriculture is key to Idaho’s economy andculture, and that agricultural production facilities are often the target of undercoverinvestigations. The court’s language in refuting this argument is strong:The State's logic is perverse—in essence the State says that (1) powerful industriesdeserve more government protection than smaller industries, and (2) the more attentionand criticism an industry draws, the more the government should protect that industryfrom negative publicity or other harms. Protecting the private interests of a powerfulindustry, which produces the public's food supply, against public scrutiny is not alegitimate government interest.[4]Furthermore, the court looked to the rather damning legislative history underlying the statute.The legislative history reveals not only the purpose of the law, but the legislature’s attitudetoward animal rights investigators and animal welfare organizations. The legislative historycontains phrases like “marauding invaders centuries ago who swarmed into foreign territoryand destroyed crops to stave foes into submission,” “terrorists,” “farm terrorism,” “vigilantetactics” and, “this is the way you combat your enemies.”[5] The court found that it was “basedon these assumptions” the legislature passed the interference with agricultural production law,and that “a purpose to discriminate and silence animal welfare groups in an effort to protect apowerful industry cannot justify” the statute.[6] In the face of this, the state’s argument thatthe statute didn’t create an impermissible classification was irrelevant — the animus evidencedin the legislative history was sufficient for the court to find an equal protection violation.Constitutional scholar Erwin Chemerinsky filed an amicus brief in this case urging the court toconsider a further equal protection argument. He suggested the court should apply a strictscrutiny standard because the statute discriminates on the basis of a fundamental right: freespeech.[7] Having already completed a full free speech analysis, the court had to only brieflyanalyze the argument here and quickly held that because the statute was not narrowly tailoredto meet a substantial government interest, it also violated the equal protection clause.Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage2 of 4 8/24/2015 2:14 PMThe Future of Ag-Gag LegislationAgricultural gag laws, or so-called ag-gag laws (i.e., laws that protect the agriculture industryfrom undercover investigation and intentional disruption), appeared in a few states in the early1990s. Legislatures claimed they were necessary to defend against extreme acts of violenceperpetrated largely against pharmaceutical companies that tested on animals. These laws havenot been tested because they have rarely been used. However, the past few years have seen aresurgence in ag-gag legislation, this time aimed more at undercover investigation. These lawshave failed in several states, passing only in Missouri, Idaho and Utah, but given the currentpublic scrutiny of food production issues, it is likely more legislatures will consider them.ALDF v. Otter should be a cautionary warning to states considering one form of the newlegislation, the prohibition against misrepresentation to gain employment at an agriculturalproduction facility, especially since some legislatures were already wary of First Amendmentchallenges. Another new legislative approach criminalizes failure to report animal crueltywithin a limited time-period, usually 24 or 48 hours.These “quick reporting laws” make failure to report animal cruelty a form of animal crueltyitself. Proponents claim they protect animals by preventing undercover investigators fromkeeping video and using it for fundraising purposes instead of reporting the crimesimmediately. Opponents claim the laws prevent investigation into systemic animal cruelty,which takes time to document so it can be prosecuted. Missouri is the only state in which thistype of law has been enacted and it remains untested. It has failed in several other states.Where this case should have a significant impact on future of ag-gag legislation is in its strongfindings of the public interest in food safety and animal welfare and the animus toward animalwelfare organizations underlying ag-gag legislation. The court’s earlier findings that ALDFdemonstrated no plans to intentionally cause physical damage or injury to agriculturalproduction facilities contradict the “terrorist” label that is so carelessly thrown around inlegislatures. The rhetoric labeling animals rights and animal welfare organizations as terroristsis pervasive, and, in some legislatures, persuasive.But, at the same time, mainstream and alternative media are full of stories highlighting foodsafety and in the face of public pressure, and recently several large restaurants and grocerystore chains have announced they will only source more humanely raised meat. The court isstill determining the remedy in this case, but its holdings are clear: protecting the agricultureindustry does not trump constitutional free speech and equal protection.Ag-gag legislation that criminalizes participation is a significant public interest conversationthat should have a hard time standing.—By Stacey L. Gordon, University of MontanaStacey Gordon is an associate professor of law at the University of Montana's Alexander BlewettIII School of Law. Gordon serves as vice president of the Montana Legal Services Association'sboard and secretary of the board for the Humane Society of Western Montana. She is alsodirector of the William J. Jameson Law Library.The opinions expressed are those of the author(s) and do not necessarily reflect the views ofthe firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This articleis for general information purposes and is not intended to be and should not be taken as legaladvice.[1] Idaho Code Ann. § 18-7042 (Supp. 2015).[2] Animal Legal Defense Fund v. Otter, 44 F. Supp. 3d 1009, 1018 (D. Idaho 2014).[3] Animal Legal Def. Fund v. Otter, No. 1:14-CV-00104-BLW, ___ F. Supp. 3d ___ (D. IdahoAug. 3, 2015) (quoting U.S. v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012).Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage3 of 4 8/24/2015 2:14 PM[4] Id.[5] Id.[6] Id.[7] Brief of Amicus Curiae Erwin Chemerinsky, Animal Legal Def. Fund, ___ F. Supp. 3d ___(D. Idaho Aug. 3, 2015) (No. 1:14-CV-00104-BLW).All Content © 2003-2015, Portfolio Media, Inc.Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage4 of 4 8/24/2015 2:14 PM

Idaho\u27s Ag-Gag Law Goes Down And Other States May Be Next

University of Montana School of Law

The Alexander Blewett III School of Law
The Scholarly Forum @ Montana Law
Faculty Journal Articles & Other Writings Faculty Publications
8-24-2015
Idaho's Ag-Gag Law Goes Down And Other States
May Be Next
Stacey L. Gordon
Alexander Blewett III School of Law at the University of Montana, stacey.gordon@umontana.edu
Follow this and additional works at: http://scholarship.law.umt.edu/faculty_barjournals
Part of the Agriculture Law Commons, and the Animal Law Commons
This Article is brought to you for free and open access by the Faculty Publications at The Scholarly Forum @ Montana Law. It has been accepted for
inclusion in Faculty Journal Articles & Other Writings by an authorized administrator of The Scholarly Forum @ Montana Law.
Recommended Citation
Stacey L. Gordon, Idaho's Ag Gag Law Goes Down and Others May Be Next, Law360 (Aug. 24, 2015), http://www.law360.com/
articles/694583/idaho-s-ag-gag-law-goes-down-and-other-states-may-be-next.
Stacey L. Gordon
Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.com
Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.com
Law360, New York (August 24, 2015, 3:36 PM ET) -- In 1904, Upton
Sinclair misrepresented himself in order to get a job in Chicago’s
meatpacking industry so he could conduct an undercover
investigation of the working conditions. The animal cruelty and
meat-handling procedures he recounted in the 1907 novel, The
Jungle, led to the passage of the federal Meat Inspection Act and
Pure Food and Drug Act.
In 2014, an undercover investigator working for Mercy For Animals
documented horrific animal cruelty at the Dry Creek Dairy in Hansen,
Idaho. Video of the abuse was released nationally. The owners of the
dairy instituted reforms and the abusers were prosecuted. But the
law that was passed this time, within months of the video’s release,
protects neither the animals nor the food supply, but the agriculture
industry.
The “interference with agricultural production” law[1] criminalizes entering an “agricultural
production facility” by “force, threat, misrepresentation or trespass,” obtaining records or
employment the same way, making video or audio recordings of an agricultural production
facility’s operations without consent, or damaging the facility’s “operations, livestock, crops,
personnel, equipment or premises.”
Animal Legal Defense Fund and other plaintiffs filed a case challenging the constitutionality of
the prohibitions on misrepresenting oneself to obtain employment at an agricultural production
facility and intentionally causing physical damage or injury to a facility’s operations. The court
dismissed the latter challenge, holding the plaintiffs did not allege any intent to violate the
prohibition and therefore had no standing to challenge it.[2] Unpersuaded by defendants’ claim
that the law prohibits conduct, not speech, the court allowed the plaintiffs’ other First
Amendment and equal protection claims to proceed. The ALDF’s two remaining challenges were
against the prohibition against misrepresentation to gain employment and the prohibition
against recording without consent. In early August, the court overturned the misrepresentation
to gain employment and recording without consent provisions of the statute.[3]
First Amendment Challenges
Taking first the misrepresentation challenge, the court addressed the state’s reliance on U.S. v.
Alvarez, in which the U.S. Supreme Court struck down the Stolen Valor Act, which made it a
crime to lie about receiving military decorations. The state tried to distinguish Alvarez, claiming
that the interference with agricultural production statute criminalized not just lies, but lies
accompanied by conduct. The court was unpersuaded and further noted that Alvarez held that
the government could criminalize only lies that caused “legally cognizable harm.” The court
then determined that any harm caused by undercover investigators would not be caused by the
misrepresentation used to gain employment but by publication of a story about the facility, and
that any harm caused by a true story is not the kind of harm contemplated by the holding in
Alvarez. The court returned to the story of Upton Sinclair and held that § 18-7042 punishes
Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage
1 of 4 8/24/2015 2:14 PM
and suppresses the speech of undercover investigators and whistleblowers who raise issues of
importance to the public: food safety, treatment of farm animals, working conditions of
agricultural workers. The court noted that Upton Sinclair could have been punished under this
law.
Turning to the recording provision, the court found that provision further violates the First
Amendment by impermissibly regulating content-based speech. Although the state argued that
the statute is content neutral because it regulates where protected speech occurs, not what is
said, again, the court was not persuaded, finding that the law does, indeed, repress speech
based on the content of the recording since it only prohibits recordings of the agricultural
facility’s operations. The court further reiterated its earlier findings that the purpose of the
statute was to suppress speech critical of agricultural practices, in essence an impermissible
regulation of particular ideas.
The state argued that the privacy and property rights superseded other interests, but the court
held that the state failed to show a compelling interest and that the statute was not narrowly
tailored, thus failing the strict scrutiny test. Highlighting again the public’s strong interest in
food safety, worker safety and the humane treatment of animals, the court easily found the
state had no compelling interest. Furthermore, given that Idaho has laws prohibiting fraud,
trespass, defamation and stealing documents, the court found that the law is not narrowly
tailored. The state’s argument that the statute is narrowly tailored because it regulates speech
only in a private forum failed, again because food production is not private and instead is a
matter of great public concern.
Equal Protection Challenge
The First Amendment argument in this case was a foreseeable challenge; the equal protection
argument less so. There were two prongs to the court’s analysis. The state had only to show
that the discrimination in the statute, treating undercover investigators and whistleblowers in
agricultural production facilities differently than whistleblowers in any other business, was
rationally related to a legitimate government interest. The state argued that agricultural
production deserves extra protection because agriculture is key to Idaho’s economy and
culture, and that agricultural production facilities are often the target of undercover
investigations. The court’s language in refuting this argument is strong:
The State's logic is perverse—in essence the State says that (1) powerful industries
deserve more government protection than smaller industries, and (2) the more attention
and criticism an industry draws, the more the government should protect that industry
from negative publicity or other harms. Protecting the private interests of a powerful
industry, which produces the public's food supply, against public scrutiny is not a
legitimate government interest.[4]
Furthermore, the court looked to the rather damning legislative history underlying the statute.
The legislative history reveals not only the purpose of the law, but the legislature’s attitude
toward animal rights investigators and animal welfare organizations. The legislative history
contains phrases like “marauding invaders centuries ago who swarmed into foreign territory
and destroyed crops to stave foes into submission,” “terrorists,” “farm terrorism,” “vigilante
tactics” and, “this is the way you combat your enemies.”[5] The court found that it was “based
on these assumptions” the legislature passed the interference with agricultural production law,
and that “a purpose to discriminate and silence animal welfare groups in an effort to protect a
powerful industry cannot justify” the statute.[6] In the face of this, the state’s argument that
the statute didn’t create an impermissible classification was irrelevant — the animus evidenced
in the legislative history was sufficient for the court to find an equal protection violation.
Constitutional scholar Erwin Chemerinsky filed an amicus brief in this case urging the court to
consider a further equal protection argument. He suggested the court should apply a strict
scrutiny standard because the statute discriminates on the basis of a fundamental right: free
speech.[7] Having already completed a full free speech analysis, the court had to only briefly
analyze the argument here and quickly held that because the statute was not narrowly tailored
to meet a substantial government interest, it also violated the equal protection clause.
Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage
2 of 4 8/24/2015 2:14 PM
The Future of Ag-Gag Legislation
Agricultural gag laws, or so-called ag-gag laws (i.e., laws that protect the agriculture industry
from undercover investigation and intentional disruption), appeared in a few states in the early
1990s. Legislatures claimed they were necessary to defend against extreme acts of violence
perpetrated largely against pharmaceutical companies that tested on animals. These laws have
not been tested because they have rarely been used. However, the past few years have seen a
resurgence in ag-gag legislation, this time aimed more at undercover investigation. These laws
have failed in several states, passing only in Missouri, Idaho and Utah, but given the current
public scrutiny of food production issues, it is likely more legislatures will consider them.
ALDF v. Otter should be a cautionary warning to states considering one form of the new
legislation, the prohibition against misrepresentation to gain employment at an agricultural
production facility, especially since some legislatures were already wary of First Amendment
challenges. Another new legislative approach criminalizes failure to report animal cruelty
within a limited time-period, usually 24 or 48 hours.
These “quick reporting laws” make failure to report animal cruelty a form of animal cruelty
itself. Proponents claim they protect animals by preventing undercover investigators from
keeping video and using it for fundraising purposes instead of reporting the crimes
immediately. Opponents claim the laws prevent investigation into systemic animal cruelty,
which takes time to document so it can be prosecuted. Missouri is the only state in which this
type of law has been enacted and it remains untested. It has failed in several other states.
Where this case should have a significant impact on future of ag-gag legislation is in its strong
findings of the public interest in food safety and animal welfare and the animus toward animal
welfare organizations underlying ag-gag legislation. The court’s earlier findings that ALDF
demonstrated no plans to intentionally cause physical damage or injury to agricultural
production facilities contradict the “terrorist” label that is so carelessly thrown around in
legislatures. The rhetoric labeling animals rights and animal welfare organizations as terrorists
is pervasive, and, in some legislatures, persuasive.
But, at the same time, mainstream and alternative media are full of stories highlighting food
safety and in the face of public pressure, and recently several large restaurants and grocery
store chains have announced they will only source more humanely raised meat. The court is
still determining the remedy in this case, but its holdings are clear: protecting the agriculture
industry does not trump constitutional free speech and equal protection.
Ag-gag legislation that criminalizes participation is a significant public interest conversation
that should have a hard time standing.
—By Stacey L. Gordon, University of Montana
Stacey Gordon is an associate professor of law at the University of Montana's Alexander Blewett
III School of Law. Gordon serves as vice president of the Montana Legal Services Association's
board and secretary of the board for the Humane Society of Western Montana. She is also
director of the William J. Jameson Law Library.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of
the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article
is for general information purposes and is not intended to be and should not be taken as legal
advice.
[1] Idaho Code Ann. § 18-7042 (Supp. 2015).
[2] Animal Legal Defense Fund v. Otter, 44 F. Supp. 3d 1009, 1018 (D. Idaho 2014).
[3] Animal Legal Def. Fund v. Otter, No. 1:14-CV-00104-BLW, ___ F. Supp. 3d ___ (D. Idaho
Aug. 3, 2015) (quoting U.S. v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537 (2012).
Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage
3 of 4 8/24/2015 2:14 PM
[4] Id.
[5] Id.
[6] Id.
[7] Brief of Amicus Curiae Erwin Chemerinsky, Animal Legal Def. Fund, ___ F. Supp. 3d ___
(D. Idaho Aug. 3, 2015) (No. 1:14-CV-00104-BLW).
All Content © 2003-2015, Portfolio Media, Inc.
Idaho's Ag-Gag Law Goes Down And Other States May Be Next - Law360 http://www.law360.com/articles/694583/print?section=foodbeverage
4 of 4 8/24/2015 2:14 PM


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