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3 Open Minutes with Daniel Steenson and Bob Naerebout

Progressive Dairyman Editor Walt Cooley Published on 30 June 2014

Idaho passed a new state law this year that would make it a misdemeanor crime to interfere with agriculture production by entering a private facility without permission; obtaining its records by force, threat, misrepresentation or trespass; videotaping without consent or due process; or intentionally causing physical damage or injury to the farm, its animals or equipment.

The law also makes it illegal to misrepresent yourself in order to gain ag employment with the intent to “cause economic or other injury” to an agribusiness.



The law passed Idaho’s legislature with super-majority votes despite lobbying and opposition from animal rights groups. Recently, a coalition of animal rights supporters challenged the law in federal court as an infringement of free speech.

Progressive Dairyman Editor Walt Cooley spoke with the law’s author, Daniel Steenson, and one of his clients, the Idaho Dairymen’s Association. The association has requested a federal court grant it “intervener status,” which would permit it to participate as a party throughout the entire proceedings of the case, including in any appeal


Dan, what was your involvement in this bill from the beginning?

STEENSON: The Idaho Dairymen’s Association asked me to craft a bill that would address conduct of concern, so I did. I represent a variety of ag associations, so I had them in mind when I drafted the bill.


I also worked with the Idaho Attorney General’s office to develop the bill from draft form to something we felt comfortable presenting to the legislature for consideration. And then I was Bob’s right-hand man in advocating for the bill along with a broad array of other ag groups.


How was this law written?

STEENSON: The model and the precedent for this bill is actually an Idaho statute. It’s Idaho Code section 18-7040, which was enacted a dozen or so years ago to protect agricultural research facilities from wrongful interference.

In that statute, there are five categories of wrongful conduct, just like there are five categories of conduct in our statute, which are prescribed. There are very similar provisions in that statute defining the crime and providing for penalties.

We also looked at other Idaho statutes which protect private property and privacy interests, like what I call our state’s anti-drone law, which was enacted last year to prohibit the use of unmanned drones to fly over property, surveil and record what is going on without consent.


We also looked at our state’s anti-camcorder law, which prohibits people from going into a movie theater and recording what goes on there without consent. Secondarily, we also looked at statutes that address this issue from other parts of the country. But this statute is really not modeled after any other legislation or statute that was enacted elsewhere.


So this law is unique from others in that it addresses how video can be obtained?

STEENSON: Yes, there were statutes in other parts of the country that arguably crossed the line by affecting what could be done with information once it’s obtained. We stayed away from that approach. That can lead to a First Amendment problem.


Opponents might call this an ‘ag-gag’ law. But you would say it’s not, right?

STEENSON: The law doesn’t target speech. So if a group wants to boycott an industry, dairy or otherwise, or wants to criticize an industry, dairy or otherwise, that’s not the issue. The issue with this law is how information is obtained. I wouldn’t want your readers to get the misimpression that we are targeting First Amendment speech with this law – because we’re not.


Why do you feel it was important for this bill to pass?

NAEREBOUT: The issue for us became important after an undercover video released in December from a Wisconsin dairy farm led to that producer losing his market. In Idaho, where we only have seven or eight major purchasers of milk, that would be a bigger issue for a producer than it was in Wisconsin, where they have 300-plus processors.


What are the grounds for the legal challenge to this law?

STEENSON: This bill addresses interference with agricultural operations by various means. Two of those five means are being challenged in court.

First, the plaintiffs say they have some kind of First Amendment right to misrepresent who they are in order to gain entry to an ag facility with the intent to cause that facility economic harm. They say that’s “pure speech” – in other words, they have a First Amendment right to lie.

Second, the plaintiffs say they have a First Amendment right to what they call “visual capture.” In other words, they have a First Amendment right to record. They say the First Amendment protects not only pure speech and expressive activity, for example, what I’m saying right now, but it also protects acts preparatory to speech, for example, recording or gathering information, like what you’re doing right now.

We believe the issue is whether the First Amendment protects one’s right to record on private property, on property that’s not open to the public. We clearly believe, under Supreme Court authority, one does not have this right.


What is ‘intervener status’? And why has the Idaho Dairymen’s Association requested it?

STEENSON: Basically, you participate beyond the filing of one brief, which is in contrast to an amicus brief. An amicus is a friend of the court and you need file only one brief. However, an intervener is a party to the case, for all purposes. So if, for example, the case is not dismissed on the motion to dismiss and we are granted intervention, then we will continue to participate in the case as a party to it.

NAEREBOUT: We basically looked at the lawsuit and determined that we wanted to have intervener status so that, if permitted, we’d have the ability to argue our points of view, which might go beyond the points of view of the state, in front of a judge.


What are the next steps in this legal battle?

STEENSON: If the motion to dismiss is not granted, it would proceed toward trial. It’s not uncommon for a case like this to be decided through briefing and oral argument on a motion for summary judgment, so that it could be decided before trial.


And if it proceeds to trial and then a verdict, to whom would the decision be appealed?

STEENSON: If it were appealed, it’d be to the Ninth Circuit Court of Appeals.


What could you share with dairy organizations around the country about your experience passing and now defending this law?

NAEREBOUT: First, you have to be prepared for a lot of negative media directed at your industry, especially in large markets. So in Boise, HSUS was continually running negative ads against the industry and against the legislation.

Second, try to build as broad a base of support as possible. We had a lot of industries that aren’t tied directly with agriculture saying, “Why are you just limiting it to agriculture? Why don’t you broaden it?” Any time you can broaden your base, you gain more support.

Finally, be prepared to defend the law. You can’t craft the legislation and not be prepared to defend it. Make sure you are looking at a new law from the perspective of somebody who’s going to challenge it.

Try and address those questions in the legislation and with legislators before you even propose the legislation. We’re pretty confident of the strength of our legislation because of the groundwork that was done prior to running it.

STEENSON: Well stated. We were careful in the legislation not to affect speech. It was not our intent to affect speech. Our intent and what we accomplished in this legislation was to address the wrongful conduct that’s identified in the legislation.

There are accusations in the litigation that there was animus toward these groups and that there was intent to target their ability to criticize the dairy industry. None of that is true. The legislation was not motivated by any ill will toward the groups, and it does not have any adverse effect on their legitimate activities. It does not affect speech. That has to be clear. PD

 walt cooley

Walt Cooley
Progressive Dairyman

The following parties and individuals have brought suit against the State of Idaho for the law discussed in this article. They include:

  • People for the Ethical Treatment of Animals
  • American Civil Liberties Union of Idaho
  • The Center for Food Safety
  • Farm Sanctuary
  • River’s Wish Animal Sanctuary
  • Western Watersheds Project
  • Sandpoint Vegetarian
  • Counterpunch
  • Idaho Concerned Residents for the Environment
  • Idaho Hispanic Caucus Institute for Research and Education
  • Farm Forward
  • Will Potter
  • James McWilliams
  • Monte Hickman
  • Leonard Koch
  • Daniel Hauff