Food Policy

Ninth Circuit Should Strike Down Idaho's 'Ag-Gag' Appeal

The court should uphold a lower-court ruling suppressing the unconstitutional (and unconscionable) law.

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cow
CC/Public Domain

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.

NEXT: P.J. O'Rourke: Things Are Going to Be Fine

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  1. Speaking of stinky cheese:

    Recapping a stunningly bad two weeks for the Trump White House*

    Two weeks ago Thursday, President Trump delayed his trip back home to New York ? or, really, back to his golf club in Bedminster, N.J. ? because he wanted to have a few dozen friends over from Capitol Hill for a celebration in the Rose Garden. House Republicans, after an embarrassing failure in March, had cobbled together enough votes to pass the American Health Care Act, the GOP’s planned overhaul of Obamacare. It was a celebratory moment, the high-water mark to date of Trump’s policy agenda.

    The two weeks since? A nearly unrelenting disaster of bad decisions and bad news.

    * WARNING: Fake news. None of this actually happened. This is a persecution, a witch hunt — history’s greatest!
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    1. DanO creaming over WaPo innuendo!

      1. Throat that Cheeto!

        1. Throat that Cheeto!

          Appropriate comment for an appropriate article as you are our local auto-gagging expert.

          Well done, DanO.

          Well done.

    2. Fuck off, troll.

      1. Fuck off, troll.

        C’mon, can’t you do any better? This is embarrassing.

        1. Fuck off, troll.

    3. Talk about the article or GTFO troll.

  2. 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.

    But should they be allowed to profit from the fruit of their bad act? Think of it this way: what if the livestock was people walking down the street, and the slaughterhouse workers law enforcement officers fearing desperately those people defiantly going about their business against wishes? Should a third party be able freely enter the fifty-foot radial personal space of said officers to make recorded evidence of the violently physical manifestation of that fear and then release it to other livestock, thus possibly spurring a stampede? I think we can all agree to the answer on that.

  3. “…personal space of said officers to make recorded evidence of the violently physical manifestation …”

    Surely this law contains a prohibition against the bi-pedal livestock communicating with one other about matters likely to cause incitement and public mistrust of the regulating agencies. The protecting slogan of “See Something, Say Something” has a specific context and is not an absolute right to be abused.

  4. You know who else beat dairy cows?

    1. My dick?

    2. Your dad?

      1. The morons who fell for the spoof?

  5. The ag-gag law was in-your-face blatant crony capitalism at its finest. No wonder governor Butch Otter signed it into law so gladly. I think it was struck down soon after the ink was dry–thank goodness.

    1. Exactly, thank the Noodly One that some people are still smart enough to recognize someone trying to repeal the 1st Amendment.

  6. “Should they be able to profit from the fruit of their bad act?”. Although there are several other question marks in the hypothetical this is the only actual question, a rhetorical one at that.
    Your entire post confuses me because “they” are not defined, there are two bad actors and I’m not sure what you think is the profit or fruit. In an example like this it seems redundant as they are the same thing. Maybe you are thinking that the video is “fruit of the poisoned tree” since it was obtained by deception or trespass? If so you have been watching too much Law and Order but failed to notice this is a prosecution problem because it violates due process not a press problem who is broadly protected by the first amendment. The cow thumper or fearful (abusive?) law enforcement in your example and the trespassers or third party “freely” entering the controlled space are potentially both wrong. The decreased cost of operations at the dairy and the revelations supporting the opinion of the journalist are both products of bad actions.
    Are you saying that “possibly spurring a stamped” is a valid justification for suppressing press freedom?
    Are you saying that the actions of the officer in desperate fear of people defiantly going about their business “against wishes” is equivalent to towing a stubborn cow with a chain?

    I might agree with you, I just don’t know but I can be pretty certain of one thing. We don’t “all agree” on anything.

  7. Needz moar DanO. Just when I take a looksie to see what I’m missing.

    1. Last I heard he’s going by Dill-do now.

      1. Haw haw haw!

        1. Fuck off, troll.

  8. This might be like the worst chat room ever.

  9. Only rich idiots care about how cattle is treated before it is spaughtered.

    1. Actually a lot of us care about animals and choose to speak up when backwoods psycho rednecks get their jollies off on torturing animals. It’s good that people report those pieces of shit to see that it is policed properly. I hope they end up in the prison system so someone much bigger and meaner can show them some prison justice.

  10. well if they would change the slaughter house rules so that more ranchers can choose how their cattle are processed then the public can de4al with local ranchers where they will can know how their food is treated.

    simple case of two articles pointing out problems created by regulations not solved by them

  11. Here is the way to hack instagram account when you want to know the password.

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