Judge Strikes Down Idaho 'Ag-Gag' Law, Raising Questions For Other States

Aug 4, 2015
Originally published on August 4, 2015 6:25 pm

Idaho's so-called "ag-gag" law, which outlawed undercover investigations of farming operations, is no more. A judge in the federal District Court for Idaho decided Monday that it was unconstitutional, citing First Amendment protections for free speech.

But what about the handful of other states with similar laws on the books?

Laws in Montana, Utah, North Dakota, Missouri, Kansas and Iowa have also made it illegal for activists to smuggle cameras into industrial animal operations. A new North Carolina law goes into effect in January 2016. But now those laws' days could be numbered, according to the lead attorney for the coalition of animal welfare groups that sued the state of Idaho.

"This is a total victory on our two central constitutional claims," says University of Denver law professor Justin Marceau, who represented the plaintiff, the Animal Legal Defense Fund, in the case. "Ag-gag laws violate the First Amendment and Equal Protection Clause. This means that these laws all over the country are in real danger."

"Ag-gag" refers to a variety of laws meant to curb undercover investigations of agricultural operations, often large dairy, poultry and pork farms. The Idaho law criminalized video or audio recording of a farm without the owner's consent and lying to a farm owner to gain employment there to do an undercover investigation.

Other "ag-gag" laws require that animal abuse be reported within a specific time frame, a tactic animal activists say is meant to prevent them from gathering evidence of an abuse pattern rather than just a singular event.

Utah's "ag-gag" law is the subject of another federal lawsuit, filed by the ALDF and PETA. Other states' laws go back to the early 1990s when Kansas passed criminal penalties for anyone found to damage or harm an agricultural research facility. Iowa's statute is considered to be the first in a batch of more recent "ag-gag" laws. Signed into law in 2012, it was the first to criminalize secretly videotaping a farm without the owner's permission.

Animal rights groups cheered the decision on the Idaho law this week from U.S. District Court Judge B. Lynn Winmill. Winmill found the state's "Agricultural Security Act" unconstitutional for criminalizing certain types of speech.

"Although the State may not agree with the message certain groups seek to convey about Idaho's agricultural production facilities, such as releasing secretly recorded videos of animal abuse to the Internet and calling for boycotts, it cannot deny such groups equal protection of the laws in their exercise of their right to free speech," Winmill writes.

In 2012, the animal welfare group Mercy For Animals released graphic videos from an investigation of workers at Bettencourt Dairies' Dry Creek Dairy in Hansen, Idaho, kicking, punching and jumping on cows. In response, the Idaho Dairymen's Association drafted legislation in 2014 to criminalize future undercover investigations. Though Mercy for Animals released another set of videos showing further abuse, Idaho Gov. Butch Otter signed the bill into law shortly after passage.

"Obviously we're disappointed" with the Monday decision to strike down the law, says Idaho Dairymen's Association director Bob Naerebout. "The legislation was designed and crafted to try and protect First Amendment rights while also trying to provide some personal property protection."

The Dairymen's Association will be asking the state to appeal Judge Winmill's decision, Naerebout says.

Meanwhile, animal rights activists will likely take the decision in Idaho as a shot in the arm to file more lawsuits against laws in other states and hope for the same outcome.

"Judge Winmill's decision is the first step toward restoring transparency in U.S. food production, and we hope that dangerous ag-gag laws enacted in other states will be swiftly struck down as a result of today's decision," said Mercy For Animals' Sarah Von Alt in a statement.

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A federal judge in Idaho has struck down a state law that bans undercover filming at farm operations. Idaho's dairy industry persuaded lawmakers to pass the ban after an animal rights group secretly videotaped workers at a large dairy farm beating and kicking cows. The judge says such undercover investigations are protected by the First Amendment. NPR's Dan Charles reports.

DAN CHARLES, BYLINE: For people who are fighting against the mistreatment of animals that are raised for food, the hidden video camera has become the weapon of choice. Camera-carrying activists apply for jobs at dairy farms, chicken houses, cattle feedlots.

MATT RICE: They use their real names, their real Social Security numbers, and then they go to work every day wired with hidden cameras and document the conditions that they see.

CHARLES: Matt Rice is director of investigations for the group Mercy for Animals.

RICE: These animals have been moved inside, behind closed doors, out of sight and out of mind of most Americans. But by doing these undercover investigations, we can act as the eyes and ears for the American public.

CHARLES: His group, Mercy for Animals, and other animal rights advocates have released undercover video of some of the most unappetizing parts of American agriculture.


UNIDENTIFIED MAN: Filth, overcrowding, disease, suffering.

CHARLES: Some videos have led to criminal charges being filed against farm employees. In several states, farm groups have fought back by pushing for laws that ban this sort of undercover filming. Idaho passed such a law in 2014. It makes it illegal for anyone to make video or audio records on a farm without the owner's consent or to look for a job on a farm with the intent of causing economic harm to the farm. Bob Naerebout, executive director of the Idaho Dairymen's Association, which lobbied for the law, says it's a matter of property rights. I'm driving down a public road right now, he says, I can take all the pictures I want from here.

BOB NAEREBOUT: When I'm on private property, just like if I was at your house, then there are some restrictions.

CHARLES: But animal rights groups challenged the Idaho law and won. A federal judge in the district court for Idaho declared that private undercover investigations are a form of political speech. Criminalizing them, he wrote, would suppress debate on topics of great public importance. The court's decision strikes down the Idaho law, but laws in seven other states remain in force for now. The Idaho Dairymen's Association says it will urge the state of Idaho to appeal the decision. Dan Charles, NPR News. Transcript provided by NPR, Copyright NPR.