A federal judge denied Idaho's request to dismiss a lawsuit over the so-called "ag gag" law signed by Governor C.L. "Butch" Otter on Feb. 28.

The case, Animal Legal Defense Fund et al. (ALDF) v. Otter et al., was filed in Marchand claims that the law unconstitutionally restricts First and Fourteenth Amendment protections, according to the Idaho Statesman. The defendants were originally Otter and Idaho Attorney General Lawrence Wasden.

Judge B. Lynn Winmill's ruling on Sept. 4 dismissed Otter from the case. His orderstated that, while suing state officials to prevent the enforcement of unconstitutional laws is a proper method under the Supreme Court precedent set in Ex parte Young in 1908, Otter is not directly responsible for enforcing the law, and is therefore not an acceptable defendant.

The judge also determined that the Animal Legal Defense Fund and other plaintiffs did not have standing to challenge the section of the law that prohibits "caus(ing) physical damage or injury to (an) agricultural facility's operations." The plaintiffs' claim against that section was dismissed in the order.

However, Winmill did not dismiss claims that the law punishes criticism of animal agriculture, bans forms of protected speech and bans conduct preparatory to protected speech.

The law criminalizes using "force, threat, misrepresentation or trespass" in order to gain access to, records from or employment with agricultural facilities. Winmill's order determined that, since previous courts have found lying on a job application to be a form of speech protected by the First Amendment, there is a First Amendment issue to be argued in this case.

Winmill's order also determined that the section of the law prohibiting audio or video recording at an agricultural facility without the owner's consent would likely only be used against people who published the recordings, making it a ban on protected speech, and therefore a First Amendment issue.

That provision is also a restriction on speech based on content, Winmill's ruling says. Its restrictions are on speech concerning "the conduct of an agricultural production facility's operations," and not any other conduct on the farm. Winmill uses filming of the farm's owner's children as an example of activity not prohibited by this law.

The law also requires violators to pay double the amount of any loss, punishment usually reserved for libel cases, but without requiring proof of defamation. According to Winmill, the Supreme Court prohibited this type of punishment in Hustler v. Falwell in 1988.

Winmill's order also says that the law draws a distinction between whistleblowers in general and whistleblowers in agriculture. While such distinctions can be made, they are subject to scrutiny to ensure that the law was made with good intent.

"The law doesn’t target speech," the law's author, Daniel Steelson, said in a June interview with Progressive Dairyman. "The issue with this law is how information is obtained. I wouldn’t want your readers to get the misimpression that we are targeting First Amendment speech with this law – because we’re not." Steelson wrote the law for his client, the Idaho Dairyman's Association.

The ALDF alleges that "the law was drafted by the Idaho Dairymen's Association 'with the express purpose of disadvantaging animal rights and whistleblower speech' and was supported by multiple legislators 'specifically because it would silence animal protection organizations,'" which would violate the Fourteenth Amendment's equal protection clause and is therefore subject to scrutiny.

The additional scrutiny does not mean that Winmill will find the "ag gag" law unconstitutional, "but only that the Court will examine any potential reasons for the law with particular care to determine whether the statute reflects an impermissible bias against animal-rights activists," said the order.

Winmill denied Idaho's motion to dismiss, except for dismissing Otter as a defendant and claims on the law's "physical damage or injury" clause.

The next step in the case is a trial. If appealed, it would go to the Ninth Circuit Court of Appeals, which recently ruled for a preliminary injunction against enforcing a law in a Nevada case that touched on Fourteenth Amendment equal-protection claims, according to Food Safety News.

Winmill was raised on a dairy and sugar beet farm near Blackfoot, Idaho, and is a fourth-generation Idahoan.

The plaintiffs in the case are the ALDF, People for the Ethical Treatment of Animals, AmericanCivil Liberties Union of Idaho, Center for Food Safety, Farm Sanctuary, River'sWish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment, Idaho Hispanic Caucus Institute for Research and Education, Farm Forward, CounterPunch, journalist Will Potter, animal agriculture scholar and historian James McWilliams, investigator Monte Hickman, journalist Blair Kock and agricultural investigations expert Daniel Hauff. PD

—Summarized by Progressive Dairyman staff from cited sources