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With Ashley gone, it is now my job to discuss ag-gag rulings as courts rule on the on-going challenges to these laws. Recently, the federal district court in Utah found that the state’s ag-gag law violated the First Amendment of the U.S. Constitution (Animal Legal Defense Fund, 2017). Prior to this, the Idaho federal district court had found Idaho’s ag-gag law violated the U.S. Constitution. Idaho is currently appealing that decision before the 9th Circuit Court of Appeals. Although these laws potentially violate the Constitution, producers still have options. In many cases, a producer can work with producer groups to conduct audits on the operation to determine that current practices are up to date, employees have the proper training and tools, do background checks before hiring new employees, and use employment contracts and employee handbooks to help limit many of the issues that ag-gag laws are designed to address.
Utah’s Ag-Gag Law
Many of you might be asking, “What is an ag-gag law?” These laws are relatively new developments with state legislatures, stemming from high profile undercover video investigations against livestock operations by animal welfare groups. Many of these investigations typically showed non-industry-approved practices, abuse of animals, etc. To combat these investigations which often targeted bad actors but painted the entire industry negatively, states began to enact criminal laws making it illegal to 1) enter agricultural operations to film the operation without the owner’s approval, 2) gain employment through false pretenses, and 3) to not timely report alleged abuses to the proper law enforcement agency.
In 2012, Utah adopted a criminal law making it illegal for a person to 1) gain access to an agricultural operation by false pretenses (or lying), 2) record an operation either without the owners’ consent or be prohibited from recording and do it anyway, or 3) record while an employee of the operation (Utah Code Ann. § 76-6-112 (West 2016)). In 2013, one case’s plaintiffs were charged with violating the law by recording an animal operation from the public road (the charges were eventually dismissed). The plaintiffs then challenged the constitutionality of Utah’s law.
District Court Decision
The district court reviewing the Utah case decided a motion for summary judgment, meaning the court decided on the case without a trial, just looking at what was filed with the court thus far. Based on the record and the argument of the parties, the district court sided with the plaintiffs, finding Utah’s law restricts free speech.
The First Amendment to the U.S. Constitution limits states from enacting laws limiting free speech. But there are exception to this restriction; some speech, such as defamation, obscenity, true threats, and child pornography, is not protected. So the court first had to determine if the speech in question here was protected by the First Amendment.
In looking at the lying provision, a recent Supreme Court ruling concluded that lies fall outside First Amendment protection when the lies prohibited by the law cause a legally cognizable harm. Lies that do not cause a legally cognizable harm are protected by the First Amendment. The state argued that lying to gain access to a facility can cause harm to animals and employees, but the court found that many lies told to gain access would not harm anyone.
Utah also argued that lies told to gain access make the liar a trespasser, and trespassing is a legally cognizable harm. The court disagreed with this argument because not all lies told to gain access will be a trespass. To be considered trespass, the lie must interfere with an owner’s use and enjoyment of the property. For example, a competitor who pretends to be your customer, gets into your business, and steals business secrets would be a trespasser. Here the competitor lies to gain access (pretends to be a customer) and interferes with your use and enjoyment of the property (steals business secrets); the competitor would be a trespasser.
Applying an ag-gag law to this standard, Utah’s law would be exempt from the First Amendment if a person gains access to the operation through a lie and interferes with ownership or possession of the operation. But if the lie to gain access does not interfere with ownership or the possession of the operation, then the lie is protected under the First Amendment. Looking at similar incidents involving media using undercover videos to record businesses, the court disagreed with Utah that lying to gain access to the operations can cause a trespass and the lies covered by the ag-gag law would be protected under the First Amendment.
Utah’s next argument was that lying to get a job is not protected under the First Amendment. The problem with this argument is that Utah’s ag-gag law does not make lying to gain employment a crime; it only makes lying to obtain access a crime. Because the ag-gag law does more than make lying to obtain a job a crime, the lie is still protected under the First Amendment.
The court also rejected arguments that making recordings is not protected under the First Amendment. The court highlights that recordings are protected under the First Amendment and it would seem odd not to offer First Amendment protection to the act of making the recordings. To the court, a government could actually limit speech if the government made making a recording illegal but not the video itself.
Finally, it does not matter if the speech itself (the lying or making the recording) takes place on private property. The First Amendment does not apply to speech which takes place on private property. If you own a shopping center, for example, you are under no requirement to allow people to protest on the property. The court agreed with the state that private property owners can exclude people from the property who wish to speak, but Utah’s ag-gag law has another problem. The law still allows Utah to prosecute the person based on the speech on private property. This part of the law is what the First Amendment protects against.
Courts seem to have a hard time accepting ag-gag laws as constitutional and not violating the First Amendment. But producers still have options to protect their operations. Livestock operations can check references and conduct background checks to determine if job candidates are who they say they are. Operations can also use employment contracts which make all images taken on the farm the property of the farm, or just ban the use of recording the farm by employees. Operations can make sure employees have all the necessary training and tools to handle livestock, and opportunities to learn better skills to handle livestock to prevent being the subject of an undercover video operation. Operations can also work with producer groups to see if the groups' conduct audits to verify handling techniques. An operation being proactive to protect itself will do more good than many ag-gag laws could do in protecting the operation’s best interests. Take a moment to consider what you can be doing in your operation to protect it.
Animal Legal Defense Fund v. Herbert, No. 2:13-cv-00679-RJS (D. Utah July 7, 2017).
Utah Code Ann. § 76-6-112 (West 2016).