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Idaho’s “Ag Gag” Law Found Unconstitutional

Updated: Jul 7, 2020

Cow looking into camera (Photo by Edwin Remsberg).

This article was first published in the Delmarva Farmer, September 29 Edition.

A Federal judge ruled against Idaho Code Section 18-7042, otherwise known as an “ag gag” law on August 3, 2015. This highly anticipated ruling came after months of debate and analysis. Idaho’s law is the first of its kind to be found unconstitutional.

Idaho Code Section 18-7042

The statute, Idaho Code Section 18-7042, created the new crime, “interference with agricultural production.” A person commits “interference with agricultural production” if the person knowingly: (a) enters an agricultural production facility by force threat, misrepresentation, or trespass; (b) obtains records of an agricultural production facility by force, threat, misrepresentation, or trespass; (c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the operation, livestock, crops, owners, personnel, equipment, buildings, premises, business interests, or customers; (d) enters an agricultural production facility without consent and makes an audio or video recording of the conduct of an agricultural production facilities operations; or (e) intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings, or premises.

A person found in violation of the statute would be convicted of a misdemeanor and face up to one year in jail or a fine of up to $5,000.

Background and Lawsuit

Idaho enacted the statute in 2014 after animal rights groups released undercover videos showing dairy workers at an Idaho farm abusing cows. Idaho is the third-largest U.S. producer of milk, with the state’s dairy industry generating over $2.5 billion in 2012. With the dairy industry obviously upset over this event, the legislation was passed to protect agriculture operations from this type of undercover investigation and resulting industry damage. In March 2014, animal rights activist groups filed a lawsuit against the state arguing that the statute violated freedom of speech and the equal protection clause since animal activists were singled out.

The Court Decision

Road next to farm (Photo by Edwin Remsberg).

When determining if the statute violates the First Amendment or not, the court uses a three-part test: (1) the plaintiff must prove that the First Amendment applies to the activity being claimed is protected; (2) the court then determines which standard of review applies; (3) the court assesses whether the government’s justification for restricting the speech satisfies the applicable standard.

In this instance, the court found that the statute is considered “content-based restriction” on speech and requires the highest level of scrutiny, also known as strict scrutiny. The court found that the audiovisual recording provision “not only restricts protected speech, but, in fact, discriminates based on both content and viewpoint.”

Moving on to the third part of the First Amendment analysis test, the court looks to see if the content-based restriction survives strict scrutiny. Courts use the standard that “[c]ontent-based restrictions are generally unconstitutional unless they are narrowly tailored to a compelling state interest.” In general, it is very rare that a statute survives the strict scrutiny test. Here, the court held that “even if the State’s interest in protecting the privacy and property of agricultural facilities was ’compelling’ in the First Amendment sense, [the statute] is not narrowly drawn to serve those interests.” The court reasoned there are already laws in existence to protect agriculture facilities in these types of events. For example, it is already illegal to steal documents, to trespass on to private property, or to commit fraud and defamation.

When it comes to the Fourteenth Amendment challenge (or the Equal Protection Clause), the court looks at whether the statute treats similarly situated people differently. The Equal Protection Clause commands that all states must treat “all persons similarly situated” the same. The court found that the State failed to show why “agricultural production facilities deserve more protection from these crimes than other private businesses.” It is because of this different treatment between industries under the statute that the court found that the statute violates the Fourteenth Amendment.

To conclude, the court found the statute unconstitutional and granted the plaintiff’s motion for summary judgment. Now we will wait to see if the State of Idaho will appeal this decision to the U.S. Court of Appeals for the Ninth Circuit and whether other states with “ag gag” laws will follow suit in challenging these types statutes. Many are also waiting on Utah’s “ag gag” law, facing a similar constitutional challenge. Stay tuned for updates!

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