In a relatively short, toughly-worded decision issued Aug. 3, a federal judge in Idaho struck down that state’s year-old “ag gag” law that sought to “criminalize” undercover, or whistleblower, investigations of livestock facilities suspected of animal abuse.
The action by B. Lynn Winmill, chief judge of Idaho’s U.S. District Court, is the first time any “ag gag” law, currently in force in seven states, has been declared unconstitutional.
Animal rights activists immediately touted the decision as a big-stick precedent to use to both dismantle other states’ ag gag laws and to stop any non-ag-gag state from enacting new ones.
On the defensive
Ag attorneys around the country, however, disagree. Several state ag gag laws (Iowa, Utah, South Carolina, Missouri, Kansas, North Dakota and Montana) are sufficiently different from Idaho’s, they argue, to steer clear the legal standard used to decide it.
Others are less certain. Judge Winmill’s opinion, they note, is tightly reasoned and focuses on two key Constitutional rights: the First Amendment’s guarantee to free speech and the Fourteenth Amendment’s equal protection clause that declares any person in any state enjoys “equal protection of the law.”
Both issues arose after the state legislature passed its “gag” law at the request of the Idaho Dairymen’s Association.
Idaho needs the law, one state representative explained at the time, to protect it from “terrorism” — animal rights undercover investigators — who are “taking the dairy industry hostage and seeking to persecute them in the court of public opinion.”
The purple prose came after a video of animal abuse at a sprawling Idaho dairy farm surfaced a year earlier. It drew so much national attention that the state, at the behest of the dairymen, sought to “criminalize” the kind “of undercover investigations that exposed the activities…”
The proposed law sailed through the legislature and Gov. C.L. “Butch” Otter signed it Feb. 14, 2014.
Soon, however, several animal welfare groups led by the Animal Legal Defense Fund, a California-based animal protection group that claims to be “supported by thousands of dedicated attorneys and more than 100,00 members,” sued the state in federal court.
They claimed the new law was unconstitutional because it had “both the purpose and effect of stifling public debate about modern agriculture…”
The court agreed
In his ruling, Winmill said the law plainly sought to “limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of the important First Amendment values.”
Indeed, Winmill explained, if the Idaho law had been in force when Upton Sinclair went undercover to write his “devastating expose’ of the meat-packing industry,” the novel The Jungle, his “conduct would (have) expose(d) him to criminal prosecution” in the state.
That’s a “chill the First Amendment cannot permit … .”
If Idaho is concerned that “speech” from animal activists might be or is “misleading,” patiently explained the judge, then the “remedy for misleading speech, or speech we do not like, is more speech, not enforced silence.”
In short, Winmill noted, citing an earlier precedent, “‘Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussions through content-based mandates.’”
Roger McEowen, director of Iowa State University’s Center for Law and Taxation and an attorney, strongly disagrees with the Idaho decision.
Still, McEowen concedes, the decision stands unless overturned on appeal, a long shot at best. Also, it may encourage challenges to other state ag gag laws. Many of those laws, he guesses, will withstand challenge because they differ with Idaho’s just-tossed law.
Legal challenge or not, the decision’s central point remains: If American farmers and ranchers hope to build more trust with consumers — as all swear they do — they need to shed more light on their farming and ranching practices, not more darkness.
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