In an important victory for freedom of speech, last week a federal district court struck down an Idaho law that criminalizes entering an “agricultural production facility” under false pretenses and separately criminalizes creating an audio or video recording of what takes place there without authorization from the government or the owners of the facility. The ruling by Judge B. Lynn Winmill in Animal Legal Defense Fund (ALDF) v. Otter, if sustained on appeal and followed by other courts around the country, will have important implications, because Idaho is one of seven states with so-called Ag-Gag laws, while animal farmers and their political allies have thus far unsuccessfully sought to introduce such laws in eighteen other states.
Yet ALDF v. Otter is not entirely or even chiefly a victory for activists on behalf of animal welfare. Its logic extends protection to undercover journalists and whistleblowers of all stripes. And although the court correctly applied that logic to the Idaho law, other cases could present more difficult questions about how to weigh the public’s right to know against legitimate interests in property and privacy.
The Free Speech Ruling
As recounted in Judge Winmill’s opinion, the Idaho legislature enacted the Ag-Gag law in response to the publicity surrounding release of a video showing workers at a dairy farm “using a moving tractor to drag a cow on the floor by a chain attached to her neck and workers repeatedly beating, kicking, and jumping on cows.” The video was made public by an undercover investigator for Mercy for Animals (MFA), an animal welfare organization. In what must be regarded as a tacit admission that these sorts of scenes are sufficiently common on Idaho farms that more such videos would appear unless animal activists were stopped from making them—the Idaho Dairymen’s Association drafted and lobbied for what became the Ag-Gag law.
Much of Judge Winmill’s opinion dispatches the state’s various arguments why Supreme Court precedents that protect free speech somehow mean that the Ag-Gag law is constitutional. However, if we look at the big picture rather than at each thrust and parry, the opinion boils down to five propositions:
- The Ag-Gag law singles out speech regarding agricultural facilities and is thus content-based.
- Indeed, the law’s purpose and operation single out anti-animal-cruelty speech, rendering it viewpoint-based.
- Under familiar First Amendment principles, a content-based or viewpoint-based law must be narrowly tailored to advance a compelling interest.
- The government lacks a compelling interest—indeed any interest—in preventing the dissemination of true information on a matter of public concern.
- Other government interests are adequately served by the state’s general laws against trespass, fraud, theft, and defamation.
An Equal Protection Twist
Although Judge Winmill rested his conclusion that the Idaho Ag-Gag law is unconstitutional chiefly on First Amendment grounds, he also offered an alternative basis for the decision—that the Idaho law violates the Equal Protection Clause of the Fourteenth Amendment.
To be sure, the equal protection analysis was partly redundant. Judge Winmill credited the argument that the Idaho Ag-Gag law “unjustifiably discriminates on the basis of a fundamental right—free speech—and is therefore subject to strict scrutiny.” That is fair enough but seems like a roundabout way of simply repeating that the Ag-Gag law is subject to strict scrutiny under the First Amendment requirement. After all, a content-based or viewpoint-based law is one that discriminates on the basis of speech.
However, Judge Winmill also rested his decision on a different kind of discrimination. He found that the law was rooted in “improper animus toward animal welfare groups and other undercover investigators in the agricultural industry.” Citing a 1973 Supreme Court case that invalidated a food stamp restriction on the ground that it was motivated by naked hostility to “hippies,” Judge Winmill indicated that the Idaho legislature’s prejudiced views of animal activists were similarly fantastical. He implied that Idaho legislators had no real basis for comparing non-violent investigators who care about the well-being of farmed animals “to terrorists, persecutors, vigilantes, blackmailers, and invading marauders who swarm into foreign territory and destroy crops to starve foes into submission.”
The comparison is indeed over the top, but the view of animal activists as extremists is, unfortunately, widespread. Just ten years ago, the top FBI official in charge of combating domestic terrorism said that “the No. 1 domestic terrorism threat is the eco-terrorism, animal-rights movement,” which, in the history of the United States has killed exactly zero people. Even if one considers property damage by fringe members of the animal rights and animal welfare movements, Ag-Gag laws cannot be justified, because they do much more than protect property against destruction. They aim to prevent undercover journalists and activists from recording and disseminating what happens on farms.
Implications and Applications
It would be a mistake to regard the ruling in ALDF v. Otter as principally benefiting activism on behalf of animals. Its logic applies to private sting operations of all sorts. Thus, Judge Winmill discusses historically important undercover investigations like Upton Sinclair’s early-twentieth-century investigation of the meatpacking industry—which focused on human health—and numerous undercover investigations by television journalists such as those working for the long-running CBS show 60 Minutes.
The ALDF opinion rests on the fact that Idaho’s Ag-Gag law singles out anti-animal-cruelty speech for criminal punishment. But the opinion—if affirmed and adopted more broadly—could also have implications for the application of general laws to undercover activists.
For example, last month, four members of Congress wrote a letter to the Attorneys General of California and the United States urging an investigation of the group that surreptitiously recorded Planned Parenthood officials discussing the disposition of fetal body parts. Among the issues the House members urged investigating was the possibility that a California law banning unconsented recording of private conversations was violated. California Attorney General Kamela Harris thereupon launched an investigation.
In my most recent Verdict column, I suggested that the pro-life activists who edited and disseminated the Planned Parenthood videos might be subject to defamation suits for misleading editing, but even then, I cautioned that liability would raise free speech concerns. Bringing a criminal prosecution for surreptitiously recording matters of public concern would be even more problematic.
That is not to say that the logic of the ALDF opinion ought to be extended to all contexts. Government may legitimately protect people’s privacy against self-appointed investigators. If pro-life activists sought to video-record an abortion procedure itself without the consent of the participants, or if animal activists sought to record truly private matters involving farm owners simply for the purpose of embarrassing them, there should be no First Amendment obstacle to liability or punishment under general laws forbidding invasions of privacy.
But where—as in the ALDF case and the conversations at issue in the Planned Parenthood videos—the underlying footage concerns a matter that is plainly of public concern and reveals no truly private personal details, freedom of speech ought to prevail.