**UPDATE:  In February, 2019, Iowa announced it will appeal the trial court decision.**

From a recent finding of unconstitutionality in Iowa, to an award of attorney’s fees in Idaho, to a new legal challenge in Kansas, “ag gag” laws have continued to be in the news recently.  Let’s take a look back at recent legal decisions and where pending litigation currently stands.

Background

“Ag gag” laws are generally designed to prohibit a person from entering an agricultural operation without permission or by fraudulent means and obtaining video or photographs of the operation.  Although nearly half of the states have attempted to pass this type of provision, only eight have done so.  Those states are:  IA, ID, KS, MO, MT, NC, ND, and UT.

Although each state’s law differs, generally, two types of provisions are present.  First, most laws prohibit entering an ag operation and obtaining unauthorized video or photographs of the operation.  Second, some laws prohibit an applicant from making false statements on a job application in order to gain entry to an agricultural operation with the intent to video or photograph.

Within the last few years, litigation began popping up in several of these states.  Often, plaintiffs include various animal rights groups such as the Animal Legal Defense Fund or People for the Ethical Treatment of Animals, law professors, and journalists.  Plaintiffs generally challenge the constitutionality of these laws, claiming that they violate the free speech clause of the First Amendment and the Equal Protection Clause.

Law Recently Stricken in Iowa

The Iowa law, passed in 2012, criminalizes “agricultural production facility fraud” making it illegal to obtain access to an ag operation by false pretenses or making false statement on employment applications with the intent to take action not allowed by the employer.  The statute carries with it both civil and criminal penalties.  In October 2017, various plaintiffs filed suit challenging this statue.  [Read Complaint here.]  Just this month, an Iowa federal court held the Iowa statute unconstitutional.  [Read Opinion here].

The court took a three-step approach to analyzing this legal challenge.

First, the judge held that this statute did apply to “speech.”  Because the statute requires speech–either false or misleading statements–it falls within the definition of speech.  Next, the court considered whether the false statements prohibited by the statute are protected speech.  Not all falsehoods are protected; only those that do not cause a “legally cognizable harm” or provide “material gain” to the speaker fall within the protections of the First Amendment.  The court found the falsehoods at issue under the statute do neither, meaning the First Amendment is applicable.

Second, the court briefly considered whether the statute is required to withstand “strict scrutiny,” meaning that the State must prove the statute is narrowly tailored to serve a compelling state interest, or “intermediate scrutiny” meaning the law must support an important government interest and be substantially related to that end.  The court did not rule which was applicable, finding instead that the statute failed to meet either.  The court relied upon statements made by lawmakers when debating the bill showing that bio security was not the only concern, but instead that the legislators were attempting to prevent groups from giving agriculture a bad name.  Even bio security, the court found, was not a compelling interest.  Further, the law was not narrowly tailored because there was no causal link between the statutory provisions and the perceived harms to property and bio security it set out to protect.  Finally, the court looked to other alternative measures of achieving the same result including trespass laws and other statutory protections related to bio security.

Third, the court analyzed the Fourteenth Amendment Due Process Claim made by the plaintiffs, which was dismissed as moot given the First Amendment holding of unconstitutionality.

It remains to be seen if Iowa will appeal this decision.

Laws Previously Stricken in Idaho and Utah

In 2015, a federal district judge in Idaho issued the first ruling on the constitutionality of these statues, finding the Idaho “ag gag” statute was unconstitutional.   The judge held that the law violated both the First and Fourteenth Amendments.  The State of Idaho appealed this decision to the United States Court of Appeals for the Ninth Circuit.  In January of 2018, the Ninth Circuit issued an order striking a portion of the Idaho law. [Read prior blog post here.]  The court found that provisions prohibiting entry onto a facility by misrepresentation and prohibiting recording of the conduct of an ag production facility’s operations without consent were unconstitutional.  Two provisions survived, however.  Those were provisions prohibiting a plaintiff from making false statements to obtain production records to either inflict harm on the owner or bestow a material gain on the person receiving documents and a provision preventing a person from obtaining employment with an ag operation by misrepresentation with the intent to cause harm.  In December 2018, a federal district judge issued an order requiring the State of Idaho to pay $260,000 in plaintiff’s attorney’s fees in the case.

In 2017, a federal district judge in Utah held that state’s “ag gag” statute unconstitutional as well. [Read article here.]  The judge found the statute, which contained prohibitions on gaining access under false pretenses and criminalized intentionally recording an image or sound from an operation by planting a recording device, trespassing to film an operation, and filming an operation after applying for employment with the intent to film, violated the First and Fourteenth Amendments.  In this analysis, the Court focused on what Utah said was the purpose of the statute, namely, protecting animals and workers from disease, or injury.  The court found that the statute did not withstand the strict scrutiny required in order to uphold this type of provision as there was no evidence that any disease or injury had occurred and this statute appeared an over-inclusive way to remedy that problem.  The State of Utah elected not to appeal the verdict.  When the dust settled, Utah agreed to pay the plaintiffs $349,000 in attorney’s fees and costs to settle the case.

Pending Challenges

Currently, there are Constitutional challenges pending against statutes North Carolina and Kansas.  As in the prior cases, the challenges involve the First and Fourteenth Amendment.

The most recent challenge was filed in December 2018 against the Kansas law, the oldest in the nation, passed in 1990.  The Kansas law prohibits, without consent of the owner, taking photographs or videos at an animal facility with the intent to damage the enterprise and entering an animal facility with the intent to damage the enterprise and commit a prohibited act, like taking a photograph or video.  [Read Complaint here.]

The North Carolina law is also facing litigation.  This statute, titled the “North Carolina Property Protection Act” is a bit different than the other states’ statutes.  The law provides that a person who intentionally gains access into the nonpublic areas of another’s premises and engages in an act exceeding authority is liable to the owner.  Unlike the others, this statute does not apply solely to agriculture and does not apply only to undercover photography or videos, it appears to focus more on the idea of trespass.  Examples of acting beyond authority include capturing or removing data, paper, records, or documents, recording images or sound, or substantially interfering with ownership or possession of the property.  In 2016, various plaintiffs filed suit.  The trial court initially dismissed the case, finding lack of standing, meaning that the plaintiffs had not alleged sufficient interest in order to bring the lawsuit.  The United States Court of Appeals for the Fourth Circuit reversed, finding that the plaintiffs did meet the standing requirements and could pursue this lawsuit.  [Read Opinion here.]  The case was remanded back to the trial court where various motions are currently pending.

Conclusion

The litigation and controversy surrounding “ag gag” statutes appears far from over.  With three of eight statutes stricken and legal challenges pending to three more, it will almost certainly be the courts that determine the future of these types of statutes.