For the second time, a federal court judge has held a state “ag gag” statute unconstitutional.  Previously, an Idaho statute was deemed unconstitutional and this decision remains on appeal at the Ninth Circuit Court of Appeals.  This time, the decision came from Judge Robert J. Shelby in the United States District Court for the District of Utah.

Background

In the 1990’s, laws criminalizing entering an animal facility and filming without consent were outlawed by statutes in Kansas, Montana, and North Dakota.  No one was prosecuted under these statutes and no other states enacted similar laws for many years.  However, in the wake of numerous undercover videos being released between 2007-2009, several states began introducing similar legislation, referred to by opponents as “ag gag laws.”  Iowa, Utah, Idaho, and North Carolina followed suit and passed their own “ag gag” statutes.

The Utah statute, passed in 2012, essentially contains four provisions, on related to lying and three related to filming.  The statute criminalizes “obtaining access to an agricultural operation” under false pretenses.  This was an attempt to dissuade animal rights activists from providing false information in order to be hired as an employee at an agricultural operation in order to conduct undercover surveillance.  The recording provisions criminalize intentionally recording image or sound from an ag operation by leaving a recording device, filming an ag operation after applying for employment with an intent to film, and trespassing to film an operation.

Just less than a year after the law went into effect, Amy Meyer was charged with violating the new law.  She was arrested while standing in a public area, filming a cow being moved by a bulldozer.  Because Meyer was standing on public property, she did not violate the statute, and the case was dismissed by the State.

Meyer joined with two animal rights groups, PETA and the Animal Legal Defense Fund, and filed suit claiming that the Utah statute violates the First and Fourteenth Amendments.

Opinion

The Court sided with the Plaintiffs, finding that the law violates the First Amendment.  [Read full opinion here.]

Standing

In order to file suit, a plaintiff must show an injury, caused by the conduct complained of, that is redressible by the court.  When a lawsuit challenges a statute alleging a “chilling effect” on freedom of speech, the United States Court of Appeals for the Tenth Circuit sets forth a three-part test to prove injury, requiring that a plaintiff show: (1) in the past, the plaintiff engaged in the kind of speech impacted by the statute; (2) that a plaintiff has a desire, but not specific plans, to engage in the speech; and (3) that the plaintiff has no intention of engaging in the speech because of a  credible threat that the statute will be enforced.  The Court found all three to be present in this case.

The Court found all three to be present in this case.  Meyer met the requirements as she actually did participate in this type of speech and was arrested for doing so, and she would like to do so again but has not due to fear of the statute being enforced.  The members of PETA and ALDF, too, have engaged in operations where they have lied to obtain employment in order to film ag operations and now wish to do this in Utah, but have not done so for fear of being prosecuted.

First Amendment

Plaintiffs allege that the statute unconstitutionally restricts their right to free speech under the First Amendment.  To determine if a violation exists, a Court employs a three-part test: (1) whether the First Amendment applies to this statute; (2) what level of scrutiny applies; and (3) whether the State made the requisite showing to justify the restrictions.

(1) The First Amendment applies.  The State argued that the lying provision of the Act did not implicate the First Amendment because there is no constitutional protection for false information.  There are certain categories of speech that are simply not protected by the First Amendment, such as threats or defamation.  When it comes to untruthful statements, the US Supreme Court has said that lies that cause “legally cognizable harm” fall outside the protection of the First Amendment.  The State argued that there were two types of legally cognizable harm caused by people providing false information in order to gain access to an agricultural operation: danger to animals and employees, and trespass over the property to which the person would not otherwise have access.  Although the Court agreed that danger to animals and employees would be legally cognizable harm, it found that there was no evidence in the record that lying to obtain access would result in this danger.  The Court then held that trespass could be a legally cognizable harm only if there was a trespass type harm involved, such as interference with ownership or possession of the property.  Although the Court recognized that there could be some situations where this type of damage could occur (i.e. someone gaining access and then damaging the property), the Act’s prohibition includes many more instances for which this type of damage would not occur and, thus, those instances would be protected by the First Amendment.

With regard to the recording provisions of the Act, the State argued that the act of recording is not “speech” as required for First Amendment protection.  The US Supreme Court has not directly decided this issue, but Judge Shelby believes the Supreme Court would find recording to be speech.  Movies are protected by the first amendment, as are photographs, videos, and sound recordings.  Thus, the Judge reasoned there should be no distinction between the end product–the recording–and the act of making those recordings.  Several other federal appellate level courts reached the same conclusion.

Finally, the State argued that there are no First Amendment protections on private property, thus speech on ag operations could not be protected.  The State relied upon several cases, but the Court distinguished them, finding that in those cases the Supreme Court found that a private property owner had the right to exclude someone who wished to speak without violating the First Amendment, but that was different than here, where the State attempted to impose criminal penalties on that person.  Speech occurring on private property does not divest it of constitutional protection.

(2) Strict scrutiny applies.  Because the First Amendment does apply, next the Court turned to which level of scrutiny was appropriate.  This depends on whether the prohibition was content based or content neutral.  If a law is content based, strict scrutiny applies.  If the law is content-neutral, intermediate scrutiny applies.  The court found both the lying and recording provisions to be content based, as they criminalize actions or recordings based on what they say.  Thus, strict scrutiny is applicable.

(3) The law does not withstand strict scrutiny.  Under strict scrutiny, a law is presumed to be unconstitutional and it is the burden of the State to show that the restriction furthers a “compelling state interest” and is “narrowly tailored to achieve” that interest.  The State offered four interests to justify the statute: (1) protecting animals from diseases brought in by workers; (2) protecting animals from injury resulting from unqualified or inattentive workers; (3) protecting workers from exposure to zoonotic diseases; and (4) protecting workers from injury resulting from unqualified or inattentive workers.  Interestingly, even the Court pointed out that the State did not argue any sort of private property or privacy interest in justifying the law.  Thus, the Court did not address those potential rationales and issued its decision instead only on the four enumerated rationales.

In determining whether these reasons were compelling the Court noted there was no evidence of diseases being spread or animals or employees being injured by undercover videographers offered.  This meant the harm was entirely speculative and, harm that is “merely speculative” does not constitute a compelling state interest.  Further, the Court reasoned, even if these were compelling interests, the Court failed to show that the act was narrowly tailored.  The Court found the act “seemingly not necessary to remedy the State’s alleged harms” and “an entirely overinclusive means to address them.”

Interestingly, the Court pointed out, “What the Act appears perfectly tailored toward is preventing undercover investigators from exposing abuses at agricultural facilities.  The State has not argued this as a government interest motivating the Act.  And had it done so, it is not clear whether that interest could be sufficiently compelling to withstand strict scrutiny.  But that is a question for another day.”

Thus, the Court found that the statute was unconstitutional and violated the Plaintiffs’ First Amendment rights.

Utah has not yet stated whether it plans to appeal this decision to the United States Court of Appeals for the Tenth Circuit.

Take Away Points

This is the second time an “ag gag” statute has been found unconstitutional.  At the very least, groups and legislators drafting these statutes need to take note and be very careful in how statutes are justified, worded, and to what actions they apply.  Moreover, given both the constitutional issues and the negative public perception these statutes often bring, it may be well to analyze other options to protect agricultural operations from these types of situations.

There are also a number of steps that producers should consider to ensure that their operations and animal care practices are such that no undercover video would be harmful and to ensure they carefully screen applicants for jobs to avoid hiring people with ulterior motives.  I’ve previously blogged about this here.

Finally, this case illustrates the reality in litigation that a court will only consider the arguments presented by the parties.  Here, had the State attempted to justify the need for the statute differently, by focusing on private property rights, the analysis would likely have changed and the outcome could have been different.