Ag-Gag Update: Federal Appeals Court Strikes Down Idaho’s Ban on Private Surveillance

Dan Flynn

A still shot of video footage taken on a dairy farm.

An appellate court Thursday restored specific provisions of Idaho’s 2012 Ag-Gag law but said audio, visual recordings of animal agricultural facilities could not be prohibited by the Gem State under the First Amendment to the U.S. Constitution.

It may be a landmark decision for being the first time a federal circuit court has found there is a constitutional right to take pictures or audio-visual recordings on private property.

The 2-to-1 ruling by the San Francisco-based U.S. Court of Appeals for the Ninth Circuit gives both Idaho Attorney General Lawrence G. Wasden and the collection of animal activists something to crow about.

In the summary of their opinion, the 3-judge appellate panel said:

The Interference with Agricultural Production law was enacted after a disturbing secretly-filmed expose of operations at an Idaho dairy farm went live on the internet. The statute — targeted at the undercover investigation of agricultural operations — broadly criminalizes making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the facility without the owner’s consent.”

The Ninth Circuit first sided with animal activists challenging the Ag-Gag” law by finding that Idaho’s criminalization of misrepresentations to enter a production facility…could not survive First Amendment scrutiny.”

According to the case summary, the panel held that the subsection criminalized innocent behavior, was staggeringly overbroad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists. The panel also struck down the statute’s subsection that banned audio and video recordings of a production facility’s operations.

The panel held that the Recordings Clause regulated speech protected by the First Amendment and was a classic example of a content-based restriction that could not survive strict scrutiny,” it continues.

The appellate judges came down on Idaho’s side when a section which criminalizes obtaining records of an agricultural production facility by misrepresentation — protected against a legally cognizable harm associated with a false statement survived constitutional scrutiny under United States v. Alvarez.

Also, the panel upheld the constitutionality of a section that criminalizes obtaining employment by misrepresentation with the intent to cause economic or other injuries.

It rejected the animal activists arguments that the statute would reach a person who overstates her education or experience to get a job for which she otherwise would not have qualified, whether the person is an undercover investigator or not,” because in such a case, the law’s requisite intent to injure would not be satisfied.

AG Wadsen has yet commented on the Court ruling. The Animal Legal Defense Fund, which led the activist groups in the case, claimed victory mainly because the ban on audio, visual recordings was struck down.

The Ninth Circuit’s decision sends a strong message to Idaho and other states with Ag-Gag laws that they cannot trample on civil liberties for the benefit of industry, ” said ALDF’s Stephen Wells.

ALDF was previously successful in getting Utah’s Ag-Gag law struck down in its entirety. It is involved in challenges against Iowa and North Carolina Ag-Gag laws.

The Idaho Legislature enacted the Ag-Gag law at the behest of the Idaho Dairyman’s Association after animal abuse at a dairy farm was made public by the activist group, Mercy for Animals.

The U.S. District Court Judge B. Lynn Winmill, chief judge for the Idaho district, struck the Ag-Gag law down entirely. Wasden appealed the lower court decision to the Ninth Circuit, which heard oral arguments in Seattle, Wash., last May.

(“Split decision on Idaho’s Ag-Gag Law Might Extend Beyond Agriculture” was first published on Food Safety News and is reposted on Rural America In These Times with permission.)

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Dan Flynn is a Denver-based writer and editor with more than ten years of food safety experience. As a public affairs professional, he worked with government and regulatory agencies at the local, state, and federal levels. His career as a journalist included working for newspapers throughout the West, from the Black Hills to Seattle. His on-scene reporting on the collapse of the Idaho’s Teton Dam and the suicide bombing at Washington State University’s Perham Hall was carried by newspapers around the world and was recognized both times regionally by the Associated Press for Best Reporting on a Deadline. Most of the disasters he attends these days involve food illnesses.
Democratic Rep. Summer Lee, who at the time was a candidate for the state House, at a demonstration in Pittsburgh for Antwon Rose, who was killed by police, in 2018. Lee recently defeated her 2024 primary challenger.
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