The United States Court of Appeals for the 9th Circuit issued a ruling on the constitutionality of Idaho’s Interference with Agricultural Production (commonly referred to as an “ag gag”) statute.  The Court affirmed in part the lower court decision holding a portion of the statute unconstitutional but upheld two specific statutory provisions.  [Read full Opinion here.]

Photo by Jenny Hill via Unsplash

Background

After an undercover video showed abuse at an Idaho dairy, the Idaho Legislature passed the “Interference with Agricultural Production” law in 2014. The statute was drafted by the Idaho Dairymen’s Association with a goal of protecting agriculture from wrongful interference and preventing undercover video investigators from coming onto farms.  A good deal of legislative testimony and media interviews discussed concerns over undercover video investigations as the reason for the statute, and noted that such investigations can “destroy farmers’ reputations, result in death threats, and cause loss of customers.”

The Idaho statute criminalizes “interference with agricultural production facilities,” which is broken down into five actions.  A person commits such interference if he or she knowingly: (a) if not an employee of the facility, enters an agricultural production facility by force, threat, misrepresentation, or trespass; (b) obtains records of a facility by force, threat, misrepresentation, or trespass; (c) obtains employment with a facility by force, threat, or misrepresentation with the intent to cause economic or other injury; (d) enters a facility not open to the public and makes a video or audio recording of the facility’s operations without consent; and (e) intentionally causes physical damage or injury to the facility’s operations, livestock, crops, personnel, equipment, buildings or premises.  The courts have referred to sections (a), (b) and (c) as the “misrepresentation clauses” as ALDF challenged only the misrepresentation portion of these clauses, meaning no legal challenge was made to the criminalizing of these actions through force, threat, or trespass.  Courts have referred to section (d) as the “recording clause.”  Section (e) was not challenged.

Shortly after the law was passed, the Animal Legal Defense Fund (ALDF) filed suit against Idaho Attorney General Wasden alleging that the statute violated the First and Fourteenth Amendments of the United States Constitution.

Trial Court Decision

The trial court granted ALDF’s motion for summary judgment, holding that sections (a) – (d) violate the First Amendment and do not withstand the applicable strict scrutiny standard of review.  Moreover, the judge found that each provision also violates the Fourteenth Amendment Equal Protection Clause and fails to satisfy rational basis review.  The judge enjoined Idaho from enforcing these provisions.  [Read prior blog post here.]

Idaho appealed this decision to the 9th Circuit Court of Appeals.

9th Circuit Decision

The Ninth Circuit analyzed each provision separately to evaluate the constitutionality of each clause.

The Misrepresentation Clauses

First, the Court turned to whether the prohibitions on misrepresentations contained in sections (a), (b) and (c) were actually protected speech.  The U.S. Supreme Court has previously held that while lies and misrepresentations may be protected speech, this is not always the case.  Instead, false speech is not protected and may be criminalized if it is made for a “material gain” or causes “legally cognizable harm.”  Thus, the Court considered whether each provision involves misrepresentations made for material gain or which cause a legally cognizable harm.

• Section (a) (entering agricultural production facility by misrepresentation):  The Court found this clause to regulate speech protected by the First Amendment because it did not limit application to misrepresentations made for material gain or causing legally cognizable harm.  This broad provision would apply to anyone who lied to access a facility, whether they were seeking material gain or to cause harm.  Further, it would apply to a person lying to access any portions of a business, including areas open to the public.  Thus, because the speech does not meet the definition of unprotected misrepresentations, the First Amendment applies, and the clause is analyzed under strict scrutiny.  This provision is overly broad and does not meet the test for strict scrutiny, which requires a provision to be “actually necessary” to achieve a “compelling” government interest.  The Court assumed that Idaho had a compelling interest in protecting farms, but said that criminalizing access to property by misrepresentation was simply not necessary to protect those rights.  Idaho already has a trespass law in place that would prohibit unauthorized entry onto the property.  Further, the breadth of the definition of “agricultural production facility” could expand this to places like grocery stores or restaurants if false statements were made to gain entry, which would not be necessary to protect privacy interests.  Further, the Court noted concern about the real purpose behind the law based on legislative testimony and other comments made about the bill not being to protect agricultural operations from interference or ensure privacy, but rather to prohibit undercover journalism.  Considering this, section (a) violates the First Amendment and is invalid.
• Section (b) (obtaining records of facility by misrepresentation):  The Court upheld this provision of the statute.  “False statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer.”  The harm here is the inability of an Idaho agricultural producer to control who can access or possess his records, which are his property.  Additionally, obtaining records may bestow a “material gain” on the person receiving documents as they may contain confidential information involving trade secrets, breeding information, and proprietary research.  Because of this, this section does not regulate constitutionally protected speech and, therefore, the First Amendment does not apply.  Further, the Equal Protection Clause is not violated by this provision as there is a legitimate government interest in protecting producers.  Legislative history includes testimony about concerns over damage to farm documents such as breeding records, examples of these records being damaged by activists, and concerns over the dissemination of proprietary information.  The Court found these concerns to be legitimate purposes for enacting this section. Thus, this section is valid.
• Section (c) (obtaining employment with a facility by misrepresentation with the intent to cause economic or other harm):  This provision does not violate the First Amendment as it is limited to situations where the misrepresentation results in material gain or legally cognizable harm.  The plain language of the statute makes clear it applies only if a person makes a misrepresentation and has the intent to cause harm.  Further, the Court found the plaintiffs’ Fourteenth Amendment argument unpersuasive as this portion of the statute was enacted for a legitimate government purpose, namely, to protect the production facility’s confidential information from employees who intend to do economic harm.  This section, too, was upheld.

The Recording Clause

Next, the Court turned to section (d), which prohibits a person from entering a facility and making an audio or video recording of the “conduct of an agricultural production facility’s operations” without consent of the owner.  “The Recordings Clause regulates speech protected by the First Amendment and is a classic example of content-based restriction that cannot survive strict scrutiny.”  The Court quickly found that the act of recording video or audio was protected speech.  Then, the Court turned to the fact that this provision prohibits recording of a defined topic–agricultural operations–which is clearly a content-based restriction on speech.  Thus, can only be valid if it meets strict scrutiny, meaning it is “necessary to serve a compelling state interest” and is “narrowly drawn to achieve that goal.”  The Court found the provision not to be narrowly drawn as it was both under-inclusive and over-inclusive.  For example, it is under-inclusive as it does not prohibit photographs and it is limited to only recording of operations, rather than buildings, for example.  Theoretically, if the reason for the statute was to protect privacy, photographs would be included on the list of prohibited recording and all recordings of the facilities whatsoever would be prohibited.  Instead, it appears that the clause was actually intended not to protect privacy, but to prohibit undercover videographers from recording on farms.  Further, it is over-inclusive in an attempt to protect privacy as there are other Idaho laws that would do so without regulating speech.  For example, tort laws protect trade secrets and prohibit invasion of privacy, and defamation laws prohibit sharing false information.  Thus, this statute cannot withstand strict scrutiny and, therefore, violates the First Amendment.

Thus, the Court upheld the trial court’s grant of summary judgment regarding sections (a) and (d), but reversed the grant of summary judgment as to sections (b) and (c).

Dissenting in Part and Concurring in Part

Judge Bea issued a separate opinion in this case, specifically stating that he would have held section (a) of the statute valid.  He would have held that the mere entry onto the property of another was legally cognizable harm and, thus, a prohibition on lying to gain access would not be protected by the First Amendment.  Additionally, he would hold that gaining access to another’s property, alone, is also a material gain–it grants the person a license to enter that he or she did not previously have prior to the misrepresentation.  Thus, in his opinion, the First Amendment does not protect the speech addressed by section (a), and he would have found this section to be valid.

Either side could file a petition for certiorari to the United States Supreme Court appealing this decision.

Conclusion

This case is important as it is the first time a federal appellate court has found a constitutional right to record images on private property like a farm.  Animal rights groups are hailing this is a major victory, despite the fact that other provisions in the law were upheld.

Moreover, this opinion offers insight into the type of provisions that are allowable and those that are not when drafting farm protection laws.  In addition to focusing on whether provisions involving misrepresentation were limited to situations involving legally cognizable harm or material gain, the Court also seemed to really focus on the true intent behind creating each provision.  So, provisions like section (d) where the purpose appeared clearly to be prohibiting investigative journalism did not fare well, whereas provisions like section (b) where there was an articulated purpose in the record like protecting breeding records were upheld.  This may serve as an important lesson to legislators drafting future statutes in other states.