Idaho Seeks to Keep the Gag On

Illustration by Tim O’Brien
Originally appeared in July/August 2013 issue of Mother Jones magazine; used without permission

Having been told by U.S. District Judge B. Lynn Winmill in his order in Animal Legal Defense Fund, et al. v. C.L. Butch Otter, et al. that its so-called “ag-gag” law is unconstitutional, the state of Idaho recently filed an appeal to the Ninth Circuit, hoping to overturn Judge Winmill’s decision. Generally, ag-gag laws seek to prevent disclosure of farming/ranching operations to the public by restricting the ability of outside groups to film, record, or otherwise document those operations. They also seek to prevent the publication of any information gained. Idaho’s ag-gag law was not the first to be passed,* but it is the first to be struck down in court. It is also widely considered the prototype for many of the others which have passed (or are pending before) other state legislatures.

By way of background, in 2014, Mercy For Animals, an animal rights group, released footage of workers at an Idaho dairy farm beating, kicking, and otherwise abusing the cows there. In response to the subsequent negative publicity, the Idaho daily industry and allied agricultural interests pressured state lawmakers to make it a crime to secretly record agricultural operations. Quickly acceding to their wishes, Idaho enacted the Agricultural Security Act (“ASA”), which created the felony of “interference with agricultural production.” While the ASA stood, anyone caught video-recording agricultural operations (without the owner’s consent) could have faced:

  • Up to a year in jail;
  • A $5,000 fine; and
  • Liability for publication damages for double the “economic loss” a business suffered as a result of the release of any such video revealing animal abuse or unsafe working conditions

However, upon a challenge to the statute brought by the Animal Legal Defense Fund, the U.S. District Court for Idaho held that the ASA was overly broad and impermissibly burdened freedom of speech. Specifically, he found that the ASA’s “primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.” More specifically, Judge Winmill held the law unconstitutional under the Equal Protection Clause “because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.” The judge also recognized that there is a significant public interest in knowing what is going on at all points in the food production chain. To wit: “As the story of Upton Sinclair [The Jungle] illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern.”

No one disputes that the conduct shown on the videos was egregious animal cruelty. The issue is that many state legislatures, like that of Idaho, are attempting to make the agricultural industry almost entirely opaque by criminalizing certain forms of journalism. The reaction to the release of information showing illegal or shocking conduct should not be to make it easier to hide that conduct. From a purely public relations standpoint, this could be viewed as a tacit admission that the conduct exposed is not an exception to normal practices. It stands to reason that the best way to restore public trust is increased transparency plus aggressive action to fix any problems exposed. Idaho (and its sister states), though, seem to prefer ignoring the problem. As the case wends its way through the courts, it’s definitely something worth keeping an eye on.

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* On the federal level, there’s also 7 U.S.C. § 8791, a provision added to the Food Security Act of 1985 by the 2008 Farm Bill, which (among other things) effectively prevents the United States Department of Agriculture from responding to any Freedom of Information Act requests regarding agricultural operations. That’s a subject for an entirely different post, though. For judicial analysis of § 8791, see Ctr. for Biological Diversity v. USDA, 626 F.3d 1113, 1118 (9th Cir. 2010); Zanoni v. USDA, 605 F. Supp. 2d 230, 237-38 (D.D.C. 2009). 

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