Ninth Circuit Upholds a Portion of an Ag Gag Law
Updated: Jun 29, 2020
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In 2014, Idaho’s legislature approved the Interference with Agricultural Production law. This law was recently upheld in part and found unconstitutional in part by the Ninth Circuit Court of Appeals. The decision reverses part of a federal district court opinion finding the entire law unconstitutional (Animal Legal Defense Fund v. Wasden). Former Extension legal specialist in AREC, Ashley Ellixson, wrote an overview of the district court’s opinion that you can read here.
Idaho passed the ag-gag law after an undercover video was released showing abuse on an Idaho dairy. The law, written by the Idaho Dairymen’s Association, intends to protect agricultural operations from undercover investigators on a livestock operation.
The law creates criminal penalties in five situations for anyone who:
enters an agricultural production facility by force of threat, misrepresentation, or trespass;
obtains records of an agricultural production facility by force, threat, misrepresentation, or trespass;
obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the operation, livestock, crops, owners, personnel, equipment, buildings, premises, business interests, or customers;
enters an agricultural production facility without consent and makes an audio or video recording of the conduct of an agricultural production facility’s operations; or
intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings, or premises.
The courts reviewing the case have referred to parts 1-3 as the misrepresentation provisions, and part 4 as the recording provision. All parties agree provision 5 is constitutional and within Idaho’s powers to regulate.
District Court Opinion
The Federal District Court of Idaho granted the Animal Legal Defense Fund’s motion for summary judgment on the grounds that Idaho’s law violated the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court found that parts 1 – 3 violated the First Amendment because the state could not show misrepresentations (i.e., lying) caused any legal harm. The videoing provision (part 4) violated the First Amendment because it made it illegal to develop content protected under the First Amendment. Finally, the federal district court found that parts 1 – 4 violated the Equal Protection Clause of the Fourteenth Amendment. To learn more, read Ashley Ellixson’s post here.
Ninth Circuit’s Opinion
In reviewing the misrepresentation parts, the court had to determine if misrepresentations or lying was protected speech under the First Amendment. The court looked to a recent U.S. Supreme Court decision that the Stolen Valor Act, which had made it a crime to make false claims about receiving a Congressional Medal of Valor, was unconstitutional under the First Amendment. The U.S. Supreme Court found that these lies were protected speech. To be constitutional, the Court pointed out that the lying must cause harm recognized by a court. In reviewing Idaho’s ag-gag law, the Ninth Circuit pointed out that for Idaho’s law to be valid requires the misrepresentation to cause legally recognized harm. For example, a legally recognized harm would be harm such as an injury to a person such as monetary damages or physical damage.
Looking at part 1 above, the law required entry into an agricultural production facility by force, threat, or misrepresentation. The portion of the law making it illegal to gain entry to an agricultural production facility by force or threat was a valid criminal trespass statute. The Ninth Circuit Court of Appeals disagreed with Idaho that the misrepresentation portion of the law, which criminalized speech and required no harm to the agricultural production facility, was valid. The Ninth Circuit saw this as too broad and could potentially stifle speech. As the Ninth Circuit points out, Idaho could fix this part by taking out the misrepresentation part of the law.
The Ninth Circuit found that the provision in part 2 making it a crime to obtain records of an agricultural production facility by force, threat, misrepresentation, or trespass, is constitutional. Here there was legally recognized harm from obtaining records via a lie. The Ninth Circuit highlighted other provisions in Idaho law where lying to obtain records was constitutional.
The Ninth Circuit highlighted examples where individuals had lied to gain access to an agricultural production facility and obtain records such as damaged breeding papers on a mink farm. These examples were in the legislative record for Idaho’s law. All this was a legitimate purpose for enacting this part of the law.
Part 3, obtaining employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury, was also constitutional according to the Ninth Circuit but limited to situations where a misrepresentation causes legally recognized harm. The provision only applies when the person misrepresents him/herself to obtain a job on the farm with the intent to cause harm on the farm (such as destroying records or causing economic harm).
The final provision reviewed by the Ninth Circuit, the recording provision, violated the U.S. Constitution’s First Amendment. According to the Ninth Circuit, the recording provision regulates protected speech under the First Amendment. The Ninth Circuit disagreed with Idaho that creating the recording was not speech protected by the First Amendment. To the Ninth Circuit, this recording provision is a classic example of a content-based restriction on speech, because the recording provision regulated speech based on a particular subject matter. This provision eliminated all recordings without the owner’s consent of the agricultural operations being filmed and had now prohibited public discussion of the subject.
In order to be constitutional, the recording provision must pass strict scrutiny requiring the provision be narrowly tailored to achieve a compelling state interest. The problem with the recording provision was it made the video and audio recordings illegal, but not photographs. The recording provision also made recording an entire agricultural operation illegal when Idaho could have limited the recordings provision to an agricultural production facility or the banning recording employees out of privacy concerns for the employees. To be valid, Idaho needs to narrow this provision. Till then, this provision is unconstitutional.
Judge Bea’s Opinion
Ninth Circuit Judge Carlos Bea dissented in part of the majority’s decision and concurred in part of the majority’s decision. The dissent focused on the provision criminalizing misrepresentation to gain access to the agricultural production facility (part 1). Judge Bea would have found this misrepresentation provision constitutional. To Judge Bea, gaining access to the property alone is the legally recognized harm. The person lying would not otherwise have been granted access. To the dissent, the First Amendment did not protect the misrepresentation in part 1 and this whole part would be constitutional.
This case will carry some weight in the on-going challenges for Iowa’s ag-gag law and future ag-gag laws. Before this decision, the majority of federal district courts had found states’ ag-gag law provisions constitutional.
The Ninth Circuit’s opinion demonstrates that provisions in an ag-gag law can be valid. The trespass by misrepresentation portion potentially can be constitutional when the provision includes a legally recognized harm caused by the trespass. The misrepresentation to gain employment with the intent to cause harm and misrepresentation to gain access to agricultural production facility records will most likely be constitutional because these provisions protect against legally recognized harms. Finally, the recording limitations will not be constitutional when banning all recording on a farm, but potentially constitutional when narrowed to an agricultural production facility to protect against a legally recognized harm, such as protecting breeding records or employee privacy. This decision will aid states amending existing ag-gag laws or in drafting new ag-gag laws.
This may not be the last time we hear about this case before the Ninth Circuit. A three-judge panel heard the appeal. The plaintiffs will have the opportunity to petition for the full Ninth Circuit to hear the appeal. If that fails, the plaintiffs could also petition the U.S. Supreme Court for review.
Animal Legal Defense Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018).
Idaho Code Ann. § 18-7042 (2018).