Federal Appeals Court Strikes Down Idaho’s Ag-gag Law

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On January 4, the 9th Circuit Court of Appeals struck down Idaho’s “ag-gag” law, finding it an unconstitutional violation of free speech. The decision marks the first time a federal appeals court has ruled against an ag-gag law. Opponents of the law, which had been in effect since 2014, hope that the ruling will provide a precedent for overturning ag-gag laws in several other states.

Justin Marceau, lead counsel for the Animal Legal Defense Fund in the Idaho case, calls the victory “groundbreaking.” He says the decision “really calls into question the whole ag-gag framework.”

In reaction to animal rights activists uncovering abusive conditions on factory farms, the Iowa legislature passed the first ag-gag law in 2012. Since then, ag-gag laws have been passed in eight other states. As the prevalence of ag-gag has grown, the laws have become more expansive in their scope, going so far as to allow employers to sue employees for taking pictures of their workplace or prohibiting data collection on public lands.

The 9th Circuit struck down two of the main pillars of Idaho’s ag-gag legislation: one that criminalizes misrepresenting one’s identity to achieve access to a business or property, and another that criminalizes possession of recordings that were attained via misrepresentation.

The court ruled that the act of recording video footage is protected by the First Amendment, and because of that protection, the Idaho law was unconstitutional. It also ruled that misrepresentation in and of itself is not grounds for prosecution, and that the law as written “criminalizes innocent behavior” and was targeted at journalists.

A diverse coalition, including the Animal Legal Defense Fund, the American Civil Liberties Union, the Center for Food Safety, and several other environmental and media organizations brought the suit.  The groups have a variety of motivations to resist the widespread adoption of state ag-gag laws. Animal welfare advocates seek to expose cruel conditions at industrial livestock farms. Civil liberties advocates worry that restrictions on the media’s ability to perform undercover reporting would limit the public’s access to information.

Ritchie Eppink, legal director of the Idaho chapter of the ACLU, says that the 9th Circuit ruling is “a resounding win,” particularly its assertion that video recording is protected by the First Amendment. He says that the ACLU is watching and working against ag-gag legislation across the country. “The broader threat” of ag-gag, he says, “is that today it’s farms—tomorrow it may be transportation, banks, other major industries who want to be able to say, ‘you can’t document what we’re doing.’”

Other advocates argue that ag-gag laws present a public health threat. In a joint amicus brief, Food & Water Watch and the Center for Biological Diversity argued that ag-gag laws threaten food security because injured or sick animals are more likely to harbor bacteria that are dangerous to humans. The organizations point to an undercover investigation by the Humane Society of the United States in 2007 that documented animal abuse at a cattle processing plant in California. As a result of the investigation, the Department of Agriculture ultimately recalled 143 million pounds of meat.

Ag-gag laws have been supported in the states by large-scale industrial producers and their trade associations. In 2014, the Idaho Dairymen’s Association drafted the state’s ag-gag legislation in reaction to a Mercy for Animals undercover operation in 2012 that uncovered animal abuse at an Idaho dairy. In Iowa, the state’s ag-gag law has been supported by the Iowa Cattlemen’s Association and the Iowa Farm Bureau. In Wyoming, the state’s ag-gag law has been supported by the Wyoming Farm Bureau Federation and the Wyoming Stock Growers Association.

Marceau says that the ALDF and others intend to continue their challenges to ag-gag in other states, with the goal of “[striking] down every one of the ag-gag laws in all their different forms.”

Out This Week: Monopolists Coopt Dairy Cooperatives

In many regions of the country, just one or two dairy cooperatives buy all of the milk dairy farmers produce, dictating prices and even processing the milk in their own plants. Those cooperatives have become extraordinarily wealthy and powerful over the last thirty years, and today operate much more like corporations than member-owned cooperatives. They pay enormous salaries to their executives, while hundreds of dairy farms shutter each year. But how did agricultural cooperatives, once the economic backbone of many rural communities, become co-opted?

Open Market Institute’s Leah Douglas explores the history and politics of agricultural cooperatives in her latest feature, published in the current issue of the Washington Monthly and available on line this week.  The story unearths the evolution of today’s mega-cooperatives, and highlights a crucial federal antitrust exemption that has allowed cooperatives to grow largely unchecked. She offers new ways of thinking about cooperative regulation and suggests that one way to revive rural America is to insure the cooperative sector promotes the needs of member-owners, not wealthy executives.

What We’re Reading

  • The Republican tax bill contains significant tax cuts for the beer industry, which brewers have been celebrating. But some critics say it will disproportionately favor the largest brewers, and that less than 10% of the savings will be returned to craft brewers. That could put them at a further disadvantage when competing with multinational giants like Anheuser-Busch InBev.
  • In other tax bill news, some agribusiness companies are angry that the tax bill includes an increased deduction for farmers who sell their products to co-ops. Some agriculture companies, like Cargill, have complained that the deduction disadvantages independents in favor of cooperatives. Some of the largest cooperatives in the country could benefit, including Land O’ Lakes, Ocean Spray, CHS Inc., and others.
  • The French dairy company Lactalis has bought the fast-growing Icelandic-style yogurt company siggi’s. Last year, Lactalis bought Stonyfield yogurt from Danone for $875 million. Lactalis is one of the world’s largest dairy companies.

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