Appeals Court Drives Another Stake Into The Heart Of Idaho's 'Ag-Gag' Law

from the not-even-a-close-call-on-the-First-Amendment-side dept

The Ninth Circuit Court of Appeals has upheld a 2015 decision finding Idaho's "ag-gag" law unconstitutional. Despite the protestations of legislators and the state itself, the court finds the law prohibiting people from obtaining access to farms and other agricultural entities under false pretenses a violation of protected speech.

As the lower court pointed out, the law would have made Upton Sinclair's expose of the meatpacking industry illegal. The upshot of Sinclair's book was significant changes to food and employee safety laws. Without the efforts of whistleblowers this law clearly targeted, the safety of the public -- both consumers and employees -- would be negatively impacted.

The Appeals Court finds little to like about the state's arguments the law is meant to protect the privacy of agricultural entities. Instead, it points out statements made by legislators -- as well as the law's wording -- indicates the state intended to block speech critical of these entities. The decision [PDF] highlights comments made by legislators during the passage of the law which show the true impetus for the law's creation.

Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.”

The video mentioned here was released in 2012 by a group called Mercy for Animals. An activist involved with the group obtained a job at a dairy farm and secretly filmed employees abusing livestock. As a result of the video's release, the dairy fired the abusive employees and instituted animal welfare protocols. Legislators -- pushed and prodded by dairy lobbyists -- went a completely different route, deciding the exposure of animal abuse should result in punishment of those documenting the abuse, rather than the abusers themselves.

As the Appeals Court points out, the law was narrowly crafted to prevent whistleblowing and criticism of activities performed by employees of a certain industry. As such, there's no way the law can even be considered a close call in terms of the Constitution.

Guided by Alvarez, we conclude that subsection (a)’s misrepresentation provision regulates speech protected by the First Amendment. The targeted speech—a false statement made in order to access an agricultural production facility—cannot on its face be characterized as “made to effect a fraud or secure moneys or other valuable considerations.” Alvarez, 567 U.S. at 723 (plurality opinion). Nor can the misrepresentation provision be characterized as simply proscribing conduct. Like the statute in Alvarez, subsection (a) “seeks to control and suppress all false statements [related to access] in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.” Id. at 722–23 (plurality opinion). Unlike lying to obtain records or gain employment—which are associated with a material benefit to the speaker—lying to gain entry merely allows the speaker to cross the threshold of another’s property, including property that is generally open to the public. The hazard of this subsection is that it criminalizes innocent behavior, that the overbreadth of this subsection’s coverage is staggering, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists.

Idaho’s argument that “the material gain to the person telling the lie is the entry to the property,” is not supported by any authority and does not establish how entry onto the property and material gain are coextensive. Under the statute, any misrepresentation to gain entry could net a criminal prosecution. Take, for example, a teenager who wants to impress his friends by obtaining a highly sought after reservation at an exclusive pop-up restaurant that is open to the public. If he were to call the restaurant and finagle a reservation in the name of his mother, a well-known journalist, that would be a misrepresentation. If the restaurant offers up a reservation on the basis of the mother’s notoriety, granting a “license” to enter the premises and sit at a table, the teenager would be subject to punishment of up to one year in prison, a fine not to exceed $5,000, or both.

The court then goes on to point out the fallacy of the state's argumentative logic: if the state desired only to protect private business owners from unwanted intrusion, it already has a law on the books to handle this.

Even assuming Idaho has a compelling interest in regulating property rights and protecting its farm industry, criminalizing access to property by misrepresentation is not “actually necessary” to protect those rights. If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way. If instead, as a number of the legislators made clear and the dairy lobby underscored, the statute was intended to quash investigative reporting on agricultural production facilities, then the speech aspect of the statute prohibiting misrepresentations is even more problematic. The focus of the statute to avoid the “court of public opinion” and treatment of investigative videos as “blackmail” cannot be squared with a content-neutral trespass law.

Allowing the law to stay on the books would encourage selective prosecution. Whistleblowers capturing evidence of abusive behavior by farm employees would be targeted for fines and jail time while the proverbial teenager described in the court's analogy would be left unperturbed. The state hardly even pretends the restriction is content-neutral -- an argument that might have been more successfully raised if legislators hadn't undercut it so severely while debating the bill.

The court also notes the law is broadly-written, which could lead to even more criminalization of First Amendment-protected activity.

We are also unsettled by the sheer breadth of this subsection given the definitions of “agricultural production facility” and “agricultural production.” Id. § 18-7042(2)(a), (b). Applying these definitions, the subsection reaches misrepresentations not only in the context of a large-scale dairy facility or cattle feedlot, but also grocery stores, garden nurseries, restaurants that have an herb garden or grow their own produce, llama farms that produce wool for weaving, beekeepers, a chicken coop in the backyard, a field producing crops for ethanol, and hardware stores, to name a few.

[...]

The reach of subsection (a) is so broad that it gives rise to suspicion that it may have been enacted with an impermissible purpose… Our suspicion is not eased after reading the legislative history. The record reflects that the statute was partly motivated to protect members of the agricultural industry from “persecut[ion] in the court of public opinion,” and journalists who use exposés to “publicly crucify a company.” Although, for Equal Protection Clause purposes, we need not decide whether animus motivated this subsection, we do not ignore that a vocal number of supporters were less concerned with the protection of property than they were about protecting a target group from critical speech, which adds to our skepticism that the provision survives the “exacting scrutiny” required under Alvarez.

The court then dismantles the state's argument that creating recordings is not First Amendment-protected activity because it is (somehow) "not speech."

We easily dispose of Idaho’s claim that the act of creating an audiovisual recording is not speech protected by the First Amendment. This argument is akin to saying that even though a book is protected by the First Amendment, the process of writing the book is not. Audiovisual recordings are protected by the First Amendment as recognized “organ[s] of public opinion” and as a “significant medium for the communication of ideas.”

[...]

As with the Misrepresentation Clauses, Idaho asserts that the Recordings Clause protects both property and privacy interests. Even assuming a compelling government interest, Idaho has not satisfied the narrow tailoring requirement because the statute is both under-inclusive and overinclusive.

This is what happens when you craft a bill specifically designed to target one type of speech legislators (and their favored industries) don't like: you create a law soaked in cognitive dissonance. The court digs further into the law's inconsistencies:

Prohibiting only “audio or video recordings,” but saying nothing about photographs, is suspiciously under-inclusive. City of Ladue v. Gilleo, 512 U.S. 43, 51 (“[T]hat a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.”). Why the making of audio and video recordings of operations would implicate property or privacy harms, but photographs of the same content would not, is a mystery. This distinction defies the old adage that “a picture is worth a thousand words.”

Nor has Idaho explained how limiting the filming of operations, but nothing else, effectuates its interests better than eliminating all audio and video recordings at agricultural production facilities. Presumably, for example, an unauthorized recording of the agricultural production facility’s buildings would still implicate Idaho’s concerns about property, and the unauthorized filming of an employee birthday party would implicate concerns about privacy. Without some legitimate explanation, we are left to conclude that Idaho is singling out for suppression one mode of speech—audio and video recordings of agricultural operations—to keep controversy and suspect practices out of the public eye. Reed, 135 S. Ct. at 2229 (content-based laws lend themselves to use for “invidious, thought-control purposes”). The district court aptly noted that “[t]he recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.”

The entire law isn't overturned, however. The Appeals Court finds two aspects of it are still acceptable. It is still illegal to gain access to company records under false pretenses as well as to gain employment through misrepresentation. The court doesn't find these to be violations of rights, but rather a sensible way to allow companies to protect proprietary information that might benefit competitors if released to the public.

Whistleblowers already employed by agricultural companies are still protected under the Constitution. Investigative reporters who film agricultural operations while undercover are still protected as well, although they won't be able to seek employment under false pretenses to obtain recordings. This may make it more difficult to perform investigative journalism, but it won't make it impossible. The law as written did nothing more than give one industry an easy way to prevent criticism of its actions, policies, and employee behavior. Too bad the legislators it prodded into action undercut the state's arguments before it even had a chance to make them. Unfortunately, the only lesson the ag industry may have learned from this courtroom debacle is to buy a better brand of politician -- one that won't immediately out the law's intent during legislative discussions.

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Filed Under: 9th circuit, ag gag, first amendment, free speech, idaho