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Insight Revisting the Challenge to Idaho’s “Ag-Gag” Law

The saga of Idaho Code § 18-7042 — colloquially referred to as Idaho’s “Ag-gag” law — seems to be finally coming to a close, as just a few short weeks ago it was reported that Idaho’s Constitutional Defense Council was preparing to pay the Animal Legal Defense Fund’s (“ALDF’s”) attorney fees incurred in its successful challenge to the “Ag-gag” law.[i]  Given that this noteworthy issue at the intersection of private property and constitutional rights seems to be heading out of the spotlight soon — at least in Idaho (legal challenges to similar laws passed in other states are currently underway) — there is no better time to revisit the passage of the law, the legal challenge to the law, and the implications of the decision to overturn the law.[ii]

In 2014, following the release of undercover video footage taken at a facility in Hansen, Idaho (obtained as part of an undercover investigation of the facility), the Idaho Legislature passed Idaho Code § 18-7042, which sought to criminalize the surreptitious recording of practices at agricultural facilities under certain circumstances.[iii] Specifically, the law sought to criminalize, among other things, activities such as “[e]ntering an agricultural production facility that is not open to the public and, without the facility owner’s express consent … mak[ing] audio or video recordings of the conduct of an agricultural production facility’s operations[.]”[iv]

Shortly after the law was enacted, the ALDF filed a constitutional challenge to the law in Idaho Federal District Court.  At the district court level, the ALDF argued (among other things) that the law had a chilling effect on constitutionally protected speech, and thus, violated the First Amendment to the United States Constitution. In response, the State of Idaho argued that the law served the purpose of protecting a facility owner’s private property rights.[v]

Ultimately, on August 3, 2015, the Idaho Federal District Court ruled (among other things) that the law violated the First Amendment’s protection of free speech and noted “§18–7042 seeks to limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”[vi]

The Idaho Federal District Court’s decision was appealed to the Ninth Circuit Court of Appeals.  On January 4, 2018, the Ninth Circuit upheld the crucial portions of the Idaho Federal District Court’s decision on First Amendment grounds.[vii]

The clear impact of the successful challenge to the law is that Idaho’s agriculture industry must deal with the reality of potential undercover recordings of their operations. In light of the ruling, agricultural producers must be vigilant in enacting policies and procedures and in training employees to ensure that nothing is going on at the facility that the producer would not want the general public to know about. While it can certainly be argued — as noted by the Idaho Federal District Court — that this reality serves a needed “watchdog” function on Idaho’s agricultural producers, it must be an uncomfortable thought for Idaho’s agricultural producers that the actions of a handful of rogue employees might end up with the producer’s name all over the news.

No matter what one feels about the issue, the Ninth Circuit’s decision is certain to have a lasting effect on Idaho’s agriculture industry.

[i] https://www.idahostatejournal.com/news/local/idaho-prepares-to-pay-legal-fees-for-court-loss-on/article_1fc5635b-63a1-5e33-a3d7-d92d4b11a426.html

[ii] https://www.npr.org/sections/thesalt/2015/08/04/429345939/idaho-strikes-down-ag-gag-law-raising-questions-for-other-states; https://aldf.org/issue/ag-gag/

[iii] Animal Legal Def. Fund v. Otter, 118 F. Supp. 3d 1195, 1199 (D. Idaho 2015), aff’d in part, rev’d in part sub nom. Animal Legal Def. Fund v. Wasden, 878 F.3d 1184 (9th Cir. 2018).

[iv] Idaho Code § 18-7042.

[v] Animal Legal Def. Fund, 118 F. Supp. 3d at 1207.

[vi] Id. at 1201.

[vii] Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1205 (9th Cir. 2018) (affirming the portions of the district court’s decision regarding the law’s prohibition on entering a facility by misrepresentation and recording activities at the facility).

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