Free speech advocates rush to oppose Idaho’s ag-gag law in 9th Circuit appeal

Journalists, book publishers, food-safety groups and labor unions have gone to court to fight the Idaho law that makes it illegal to secretly film animal abuse at farms and other agricultural facilities.

Twelve groups filed friend-of-the-court briefs with the 9th U.S. Circuit Court of Appeals contending that the so-called ag-gag law, which was struck down by an Idaho judge, violates the right to free speech. A hearing is scheduled next month on the state’s appeal.

“The Idaho Legislature enacted the law with one goal in mind: to silence a growing movement of citizen-journalists and activists that conduct undercover investigations of agricultural production facilities in order to expose mistreatment and otherwise horrific conditions of animals and workers alike,” wrote two journalism professors at New York University.

In contrast, no groups filed friend-of-the-court briefs on the side of Idaho.

The dispute began after a Los Angeles-based animal rights group, Mercy for Animals, released a video in 2012 showing workers at Bettencourt Dairies in Hansen stomping, beating and dragging the cows.

The Idaho Dairymen’s Association responded by drafting a bill to criminalizes the type of undercover investigation that exposed the abuse. Idaho’s farmer-friendly Legislature passed it in 2014.

The Animal Legal Defense Fund challenged the law, and Chief U.S. District Judge B. Lynn Winmill in Boise struck it down in August 2015. He later ordered the state to pay the group $250,000 in legal fees.

The state appealed. A three-member panel of the appellate court is scheduled to hear oral arguments May 12 in Seattle.

The penalty for violators was up to a year in jail; and paying double the losses incurred by a business as the result of any exposé revealing animal abuse or unsafe working conditions.

State Sen. Jim Patrick, R-Twin Falls, who sponsored the bill, compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”

But Winmill said the law seeks to suppress speech by undercover investigators about the safety of the nation’s food supply, the safety of farm workers, the health and safety of farm animals, and the impact of farm operations on the environment.

“Audio and visual evidence is a uniquely persuasive means of conveying a message, and it can vindicate an undercover investigator or whistleblower who is otherwise disbelieved or ignored,” Winmill wrote.

Attorney General Lawrence Wasden argues that audio and video recordings should not be considered speech entitled to protection.

“There is no First Amendment right to enter another’s property to engage in speech or expressive activities,” Wasden wrote. “Investigators or journalists or whistleblowers get no special exemption from generally applicable laws that protect property owners’ interests in conditioning entry and use of property.”

The Idaho Dairymen’s Association and four other groups, including the Idaho Farm Bureau and the Idaho Cattle Association, told Winmill that the law was needed to protect property rights of agricultural producers.

“The Animal Legal Defense Fund urges the court to choose sides and elevate the right of free speech over rights of liberty, privacy and property,” the IDA said. “This is fundamentally not a decision to be made by the judiciary — it is a decision for the legislative body.”

At the 9th Circuit, several groups are pointing to Upton Sinclair and his 1906 expose of Chicago’s meatpacking industry. While Sinclair’s novel “The Jungle” was fiction, it was based on his observations inside the city’s slaughterhouses. Public outcry led to federal food and drug safety laws.

Some highlights of the latest arguments:

Reporters Committee for Freedom of the Press

The committee, which provides free legal assistance to journalists, was joined by 22 media organizations, including the Idaho Statesman, the Idaho Press Club, the National Press Club, the National Press Photographers Association and the Society of Professional Journalists, in its filing.

The groups said the law would criminalize news-gathering efforts protected by the U.S. Constitution and would chill reporting that has led to positive changes and a healthier food supply.

“Silencing the speech of journalists and the whistleblowers who act as their sources with the threat of criminal conviction leaves a federal inspection system fraught with its own problems as the lone watchdog over the food the public consumes,” the committee wrote.

The Statesman wrote editorials opposing the law.

United Farm Workers

The UFW said the law would end its ability to conduct on-site investigations into alleged violations of farm workers’ rights.

Farm workers are injured at a rate 40 times higher than workers in other industries and are already at a disadvantage when it comes to asserting their rights, the union said. More than half are undocumented immigrants who could be deported, 44 percent don’t speak English, and they average a seventh-grade education. They work in a “climate of fear” that makes them hesitant to report injuries or health and safety violations.

“The mandatory restitution provision would require the victimized farm worker (or UFW representative) to indemnify — and because of the double-damages provision, reward — the exploiter for its own illegal conduct,” the UFW said.

Idaho Building Trades Council

The labor council said the law conflicts with provisions of the federal the National Labor Relations Act that protect workers seeking to improve working conditions or refusing to perform unsafe tasks.

“Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 (of the NLRA) if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present,” the council wrote. “A picture should be worth a thousand words, not 365 days.”

The state law also tries to outlaw a legal practice known as “salting,” whereby a union worker obtains a job at a nonunion employer with the intent to organize that company’s workers, the labor group said.

Brooke Kroeger and Ted Conover

Kroeger and Conover are professors at the Arthur L. Carter Journalism Institute at New York University. Conover was a finalist for the Pulitzer Prize after going undercover as a corrections officer in 1997 to document conditions at New York’s Sing Sing Prison. In 2012, he worked as a government inspector at a meatpacking plant in Nebraska to gather information for a story.

Kroeger maintains a website on undercover investigations by journalists.

They fear a reversal by the 9th Circuit could empower other states to enact similar laws to prevent journalists from using undercover techniques to expose misconduct and abuse in areas closed to the public.

They cited The Washington Post’s 2007 report on conditions at Walter Reed National Military Medical Center. Two reporters visited the center without the knowledge or permission of Walter Reed officials to expose malodorous and moldy living quarters, disengaged and overworked employees, and demoralized wounded soldiers and family members. The series forced the ouster of the hospital’s commander, the secretary of the Army and the Army’s surgeon general.

“The United States has a proud history of important and impactful journalism that relied on the ability of the journalist to be able to ‘go undercover’ and misrepresent their identity to gather first-hand facts and observations about the conduct at issue,” Kroeger and Conover wrote.

Erwin Chemerinsky

Chemerinsky, a law professor at the University of California-Irvine School of Law who specializes in First Amendment issues, said it was amazing how Idaho lawmakers acted swiftly after the videos documenting abuse at Bettencourt Dairies were released.

“But rather than crack down on animal abuse at factory farms, the Legislature took its cue directly from industry lobbyists: It sought to obstruct the type of undercover investigation that exposed the abuse in the first place,” he wrote.

Chemerinsky cited William Sherman, a New York Daily News reporter who posed as a welfare client in 1973 to expose Medicaid fraud. Sherman complained about a cold. He was sent to a foot doctor, then to an internist and finally to a psychiatrist who arranged for weekly sessions. He was given a heart test, a chest X-ray, three blood tests, two urine tests and an assortment of sleeping pills, tranquilizers, penicillin tablets and cough syrup.

Government Accountability Project

For nearly four decades, the group has represented government and private company whistleblowers and advocated for protections.

“Tactics taken by companies to keep whistleblowers silent are brutal: poor performance reviews, denial of bonuses, harassment, threats, investigations, unfair scrutiny, transfers, blacklisting,” the group wrote. “Idaho wants to add criminal prosecutions to the list.”

Food & Water Watch

The meat industry regularly violates laws prohibiting cruelty to animals and withholding diseased animals from the food supply, this advocacy group said.

Undercover investigations “are currently the public’s best defense against foodborne illnesses that are caused by contaminated animal products, because government has proven ineffective time and against at protecting food safety.”

Floyd Abrams Institute for Freedom of Expression

The institute, at Yale Law School, is named for a lawyer who defends freedom of speech and the press. The institute said images captured by cameras have spurred public debate, influenced public opinion and reshaped society.

“The First Amendment serves as a key guardian of our democratic order by protecting the expression of unpopular ideas, facilitating vigorous public debate, and promoting the search for truth on matters of public concern,” the institute wrote. “The First Amendment would be ineffective, however, if it did not also protect the process of creating speech through fact-gathering, discovery and dissemination.”

Association of American Publishers

The trade association of the U.S. book publishing industry said the Idaho law was “designed to arm those who stand to benefit from suppressing the truth with a shield against those who seek to expose it.”

“Although Idaho dairymen may wish to be spared the burden of publicly defending their practices, that is the burden imposed upon all of us in a society where the right to obtain and disseminate information concerning public issues is broadly protected,” the group wrote.

This story was originally published April 21, 2017 at 4:30 PM with the headline "Free speech advocates rush to oppose Idaho’s ag-gag law in 9th Circuit appeal."