{"id":5538,"date":"2018-01-08T01:48:06","date_gmt":"2018-01-08T07:48:06","guid":{"rendered":"https:\/\/agrilife.org\/texasaglaw\/?p=5538"},"modified":"2018-06-15T10:34:21","modified_gmt":"2018-06-15T15:34:21","slug":"9th-circuit-ruling-idaho-ag-gag-statute","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2018\/01\/08\/9th-circuit-ruling-idaho-ag-gag-statute\/","title":{"rendered":"9th Circuit Ruling on Idaho “Ag Gag” Statute"},"content":{"rendered":"

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.\u00a0 The Court affirmed in part the lower court decision holding a portion of the statute unconstitutional but upheld two specific statutory provisions.\u00a0 [Read\u00a0full Opinion here<\/a>.]<\/p>\n

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Photo by Jenny Hill via Unsplash<\/em><\/p><\/div>\n

Background<\/strong><\/p>\n

After an undercover video showed abuse at an Idaho dairy, the Idaho Legislature passed the “Interference with Agricultural Production”<\/a> law in 2014.\u00a0The 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.\u00a0 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.”<\/p>\n

The Idaho statute criminalizes “interference with agricultural production facilities,” which is broken down into five actions.\u00a0 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.\u00a0 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.\u00a0 Courts have referred to section (d) as the “recording clause.”\u00a0 Section (e) was not challenged.<\/p>\n

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.<\/p>\n

Trial Court Decision<\/strong><\/p>\n

The trial court granted\u00a0ALDF’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.\u00a0 Moreover, the judge found that each provision also violates the Fourteenth Amendment Equal Protection Clause and fails to satisfy rational basis review.\u00a0 The judge enjoined Idaho from enforcing these provisions.\u00a0 [Read prior blog post here<\/a>.]<\/p>\n

Idaho appealed this decision to the 9th Circuit Court of Appeals.<\/p>\n

9th Circuit Decision<\/strong><\/p>\n

The Ninth Circuit analyzed each provision separately to evaluate the constitutionality of each clause.<\/p>\n

The Misrepresentation\u00a0Clauses<\/em><\/p>\n

First, the Court turned to whether the prohibitions on misrepresentations contained in sections (a), (b) and (c) were actually protected speech.\u00a0 The U.S. Supreme Court has previously held that while lies and misrepresentations\u00a0may<\/em> be protected speech, this is not always the case.\u00a0 Instead, false speech is not protected and may be criminalized if it is made for a “material gain” or causes “legally cognizable harm.”\u00a0 Thus, the Court considered whether each provision involves misrepresentations made for material gain or which cause a legally cognizable harm.<\/p>\n