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Ag production interference gets a partial pass

Tiffany Dowell Lashmet for Progressive Dairyman Published on 23 February 2018

Once again, a federal court has issued an opinion regarding the constitutionality of a farm protection (frequently called “ag gag”) statute. This time, it was the U.S. Court of Appeals for the Ninth Circuit, which upheld part – and struck down part – of Idaho’s “Interference with Agricultural Production” law.

Background

Passed in 2014, the Idaho law criminalizes “interference with agricultural production facilities,” which is broken down into five actions. A person commits such interference if he or she knowingly:

(a) if not an employee of the facility, enters an agricultural production facility by force, threat, misrepresentation or trespass;

(b) obtains records of a facility by force, threat, misrepresentation or trespass;

(c) obtains employment with a facility by force, threat or misrepresentation with the intent to cause economic or other injury;

(d) enters a facility not open to the public and makes a video or audio recording of the facility’s operations without consent; and

(e) intentionally causes physical damage or injury to the facility’s operations, livestock, crops, personnel, equipment, buildings or premises.

The courts have referred to sections (a), (b) and (c) as the “misrepresentation clauses.” The plaintiff, the Animal Legal Defense Fund (ALDF) challenged only the misrepresentation portion of these clauses, meaning no legal challenge was made to the criminalizing of these actions through force, threat or trespass.

Courts have referred to section (d) as the “recording clause.” Section (e) was not challenged.

Shortly after it was passed, ALDF challenged the statute on First Amendment and Equal Protection grounds. The trial court sided with ALDF and held all four challenged provisions to be unconstitutional. Idaho appealed that decision to the Ninth Circuit.

Ninth Circuit decision

The Ninth Circuit Court analyzed each provision separately to evaluate the constitutionality of each clause.

  • The misrepresentation clauses

First, the Court turned to whether the prohibitions on misrepresentations contained in sections (a), (b) and (c) were actually protected speech. The U.S. Supreme Court has previously held that while lies and misrepresentations may be protected speech, this is not always the case.

Instead, false speech is not protected and may be criminalized if it is made for a “material gain” or causes “legally cognizable harm.” Applying this test, the Court held that section (a) was protected speech, as it did not involve false speech for a material gain or legally cognizable harm.

Because the statutes are protected speech, the Court applied the First Amendment analysis. This provision is overly broad and does not meet the test for strict scrutiny, which requires a provision to be “actually necessary” to achieve a “compelling” government interest.

The Court assumed Idaho had a compelling interest in protecting farms, but said that criminalizing access to property by misrepresentation was simply not necessary to protect those rights. Idaho already has a trespass law in place that would prohibit unauthorized entry onto the property.

Further, the Court noted concern about the real purpose behind the law based on legislative testimony and other comments made about the bill – not being to protect agricultural operations from interference or ensure privacy, but rather to prohibit undercover journalism.

However, sections (b) and (c) – obtaining facility records by misrepresentation and obtaining employment with misrepresentations with the intent to cause economic harm – were not protected speech. For section (b), the Court looked at legislative testimony discussing a farm where someone obtained and destroyed breeding records and noted that this could be used for material gain by the taker and would result in cognizable harm to the farm.

For section (c), the language of the clause itself limits this to situations involving economic harm. Thus, because sections (b) and (c) do not involve protected speech, the First Amendment does not apply and these portions of the statute were upheld.

  • The recording clause

Next, the Court turned to section (d), which prohibits a person from entering a facility and making an audio or video recording of the “conduct of an agricultural production facility’s operations” without consent of the owner. Again, strict scrutiny applies and the Court analyzed whether the clause was “necessary to serve a compelling state interest” and is “narrowly drawn to achieve that goal.”

The Court found the provision not to be narrowly drawn for numerous reasons. For example, it is under inclusive to achieve the purpose as it does not apply to photographs. Additionally, it seemed over inclusive as there are other laws like trespass and trade secrets that can protect the information at issue.

Conclusion

This case is important because it is the first time a federal appellate court has found a constitutional right to record images on private property like a farm. Animal rights groups are hailing this as a major victory, despite the fact other provisions in the law were upheld.

From a policy perspective, this opinion offers insight into the type of provisions that are allowable – and those that are not – when drafting farm protection laws. The Court seemed to focus on the true intent behind creating each provision.

So, provisions like section (d) where the purpose appeared clearly to be prohibiting investigative journalism, did not fare well, whereas provisions like section (b) where there was an articulated purpose like protecting breeding records, were upheld. This may serve as an important lesson to legislators drafting future statutes in other states.  end mark

Tiffany Dowell Lashmet is an assistant professor and extension specialist with Texas A&M. Email Tiffany  Dowell Lashmet.

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