Last week I attended oral arguments in Seattle in a case that could determine whether the government may grant special protections to agricultural producers that supersede the First Amendment rights of others.
The case, Animal Legal Defense Fund v. Wasden, pits nonprofits such as the ALDF, ACLU, and several other concerned groups and individuals against the state of Idaho.
The case centers on an Idaho law, passed in 2014, that prohibits "interference with agricultural production." The law was "draft[ed] and sponsor[ed]" by the Idaho Dairymen's Association after an undercover investigation by the group Mercy for Animals showed dairy cows being mistreated in the state.
"Video shows dairy employees using a tractor and chain to drag a cow by its neck, and workers beating, kicking and jumping on cows," reads one piece that describes the video.
Such awful examples aren't common. But they're not uncommon, either. In 2012, I highlighted an investigation in California by the group Compassion Over Killing that revealed horrific cases of animal abuse at a slaughterhouse in that state.
The Idaho law—one of several such state laws around the country—is intended to prevent agricultural whistleblowers from sharing such evidence of animal abuse with the general public (hence the term "ag-gag laws").
The U.S. District Court ruled in 2015 that the Idaho law is an unconstitutional violation of free-speech and equal-protection rights.
"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," the court held in overturning the law.
"The Idaho Ag-Gag law represents a direct assault on food transparency and undercover journalism," attorney Justin Marceau, who argued the plaintiffs' case in the lower and appellate courts, told me this week. "The law criminalizes all persons who gain access through deceptions—including investigative journalists. It criminalizes recording at agricultural facilities—including the sort of whistleblowing that led to the largest beef recall in U.S. history."
Based on my take from oral arguments—including the three-judge panel's comments and lines of questioning—I believe the Ninth Circuit is rightly hostile to many of the worst elements of the law. And while the court may wish to salvage some facets of the law, I suspect it won't be able to do so and will uphold the lower-court ruling.
Others who've followed the case closely agree.
"Based on the oral argument, the days of Idaho's ag-gag law appear to be numbered," said appellate attorney Mahesha Subbaraman, in an email to me this week. "The panel's questions demonstrate a significant appreciation of the speech interests at stake when it comes to food journalism and that Idaho's ag-gag law targets these interests based on content and viewpoint."
Subbaraman wrote an excellent brief in support of the plaintiffs in the case that he filed on behalf of more than a dozen food-law scholars across the country, including me. In the brief, we argue that agricultural whistleblowers make a vital and unique contribution to the marketplace of ideas.
"Idaho's ag-gag law…. ultimately denies consumers a marketplace of ideas in which they are free to weigh competing voices and decide for themselves the truth about food production," we told the Ninth Circuit.
While the court didn't focus on the marketplace of ideas during oral arguments, I'm hopeful the court will address the value of information obtained by undercover animal-welfare investigators to the marketplace of ideas in their ruling.
One thing the judges did note repeatedly during oral arguments is that Idaho, like every state, has existing laws that prohibit trespass, and that such laws can—and, in my opinion, should—be used to deter and punish trespassers.
So what can be done about the dueling problems of ag-gag laws and inhumane livestock treatment? Instead of pushing states to adopt ag-gag laws, I think agricultural producers should take a different approach.
Producers should "incentivize or train employees better, for example, or invit[e] more openness and public scrutiny to help reassure the public that the nation's big farms and slaughterhouses can do what they're supposed to do—raise and slaughter animals for food without abusing them," I write in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable.
Ultimately, my hope is the court will leave agricultural producers with few other options. If, on the other hand, the Ninth Circuit were to rule against the plaintiffs, it would deal a severe blow to existing First Amendment protections.
"The stakes of this appeal are clear: If the misrepresentation or the recording bans are held to be constitutional, then investigative journalists and civil-rights-testers are at risk of being criminalized," Marceau tells me. I hope the court agrees.
Prof. Eugene Volokh's analysis of the Idaho case in a 2015 blog post that followed the District Court's ruling seems prescient on that point.
"I tend to agree that the argument likely would have to show some special justification for targeting this particular sort of videorecording," Volokh writes, "and I don't see how it can."
I don't see how it can, either. Or that it should.