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Drafting “Ag-Gag” Laws that Courts May Uphold

01/21/2018

Tiffany Dowell writing in the Texas Agricultural Law Circular reviewed the legality of “Ag Gag” laws. In 2014 the Idaho legislature passed the Interference with Agricultural Production Act.  This law contained five sections:-

 

  • Entering an agriculture production facility by force, threat, misrepresentation or trespass
     
  • Obtaining records of a facility by force, threat, misrepresentation or trespass
     
  • Obtaining employment by applying force, threat, or misrepresentation with intent to cause economic injury
     
  • Entering a facility not open to the public and making video and audio recordings without consent
     
  • Intentionally causing physical damage or injury to a facility
     
    The Animal Legal Defense Fund filed suit against the Attorney General of Idaho, claiming that the “Ag-Gag” Law violated both the First and Fourteenth Amendments to the U.S. Constitution.  The trial court grant summary judgement ruling that the first four sections violated the First Amendment in addition to the Equal Protection Clause of the Fourteenth Amendment.  The State of Idaho appealed the lower court decision to the Ninth Circuit of the United States Court of Appeals.
     
    Whether misrepresentations are protected under the First Amendment hinges on whether false speech is intended for material gain or causes harm.  The court considered that misrepresentation to enter an agriculture production facility would be protected since the provision in the Act was overly broad and did not relate to a compelling government interest.  The court considered that laws relating to trespass prohibiting unauthorized entry onto property would protect owners of farms from intrusion.  The court also considered that the intent of the Idaho Ag-Gag Law was less to protect agricultural operations from intrusion but to prohibit undercover journalism.
     
    The Court upheld the provision relating to application of misrepresentation to obtain records.  Since records are property, using false statements to obtain data would not be protected by either the First or the Fourteenth Amendments.  The court held that misrepresentation to obtain employment and to cause harm would not be protected under either the First or the Fourteenth Amendments with regard to prohibition on recordings. The 9th Circuit found that the law was excessively broad in an attempt to protect privacy and it also banned video and audio recordings.  Restrictions drawn narrowly prohibiting recordings in farm operations would however be acceptable.
     
    The conclusion from the Ninth Circuit ruling is that recording images on private property is protected speech although applying misrepresentation to gain access to a farm would not be protected under either the First or Fourteenth Amendments especially since the false statements to gain access would result in harm to the owner of a farm.
     
    Simply passing legislation to restrict journalists and agents of animal rights organizations is unconstitutional.  Crafting legislation to protect records and to prevent harm is legally acceptable.  It is also evident that laws restricting trespass can be applied to prevent intrusion but not necessarily to restrict the agents of animal welfare organizations who misrepresent their affiliations to gain access to a production facility.