Journalists, whistleblowers may not be barred from recording abuses...
By Ernest A. Canning on 8/10/2015, 9:52am PT  

In a carefully reasoned, 29-page decision, Chief U.S. District Court Judge B. Lynn Winmill struck down, as unconstitutional, an "Ag-Gag" statute that, according to the court, had been drafted for the express purpose of shielding Idaho's agricultural and dairy industries "from undercover investigators and whistleblowers who expose the agricultural industry to 'the court of public opinion.'"

"Under the law," the decision explains, "a journalist or animal rights investigator can be convicted for not disclosing his media or political affiliations when requesting a tour of an industrial feedlot, or applying for employment at a dairy farm. An employee can be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission." The offender not only faces up to one year in prison, but could be ordered to pay twice the economic loss an owner suffered as a result of publication of the video even if its content was true.

The Animal Legal Defense Fund (ADLF) and several other organizations, including the ACLU, filed the federal lawsuit and moved for summary judgment, alleging that the Idaho "Ag-Gag" statute violated both the First Amendment right to free speech and the Equal Protection Clause of the 14th Amendment. The court agreed, expressly noting that "agricultural...operations that affect food and worker safety are not exclusively a private matter" and that the right to free speech includes the ability to rely upon audio and visual recording...

As Judge Winmill observed, "Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather information for his novel, The Jungle, misrepresented his identity so he could get a job at a meatpacking plant in Chicago."

The novel not only exposed dangerous, unsafe and unsanitary conditions in that industry but led to the 1906 passage of the federal Meat Inspection Act and the Drug Act.

First Amendment rights, the court noted, are not limited to speaking about what one may observe occurring at an agricultural operation, but to recording as well:

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. Prohibiting undercover investigators or whistleblowers from recording an agricultural facility's operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast.

This issue is by no means limited to Idaho. A similar ALDF legal challenge to a Utah "Ag-Gag" statute is still pending, and in North Carolina, a Republican-controlled legislature voted to override Republican Governor Pat McCrory's veto of a nearly identical "Ag-Gag" law.

Stay tuned!

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam Vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @cann4ing.