Ag-gag ruling may lead to stringent hiring

The statute

Idaho Code 18-7042 (hereinafter “the statute”) prohibits “interference with agricultural production” and defines such interference as knowingly doing one of the following:

Tiffany Lashmet

Associate Professor & Specialist / Texas A&M University AgriLife Extension

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A non-employee enters an agricultural production facility by force, threat, misrepresentation or trespass
Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass
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
Enters an agricultural production facility without consent and makes an audio or video recording of the conduct of an agricultural production facility’s operations
Intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings or premises.

If a person is found guilty of interference with agricultural production, he or she will be convicted of a misdemeanor and could face up to one year in jail or a fine of up to $5,000 and would be required to make restitution to the victim for twice the amount of the resulting damage to the victim.

The lawsuit

Shortly after the statute was passed, numerous plaintiffs filed suit claiming that the statute was unconstitutional. The plaintiffs argued that the statute had the purpose and effect of stifling public debate about modern agriculture. Specifically, the plaintiffs claimed that the statute violated the constitutional protections of free speech and equal protection.

The state responded to these claims, arguing that the statute did not violate either provision. The state claimed that the statute was necessary to protect the agricultural industry, including animals, operators and facilities, from trespassing animal rights activists.

Decision

The court found that the statute violated both the First and 14th Amendments. With regard to the First Amendment, the court held that the statute infringed on freedom of speech, as it was overly encompassing and did not further a sufficiently compelling government interest. Protecting property rights and privacy of Idaho farmers and ranchers was not found compelling enough to satisfy the legal standard.

As to the equal protection claim, the court found there was an insufficient reason for treating animal agriculture differently than other industry groups by offering them additional protection.

Also harmful was the fact that legislative history surrounding the statute showed that it was created with a clear animus toward animal rights activists. Idaho is considering whether to appeal this decision to the U.S. Court of Appeals for the Ninth Circuit.

Take-away points

First, this opinion is certainly a blow for supporters of these types of statutes. Although the opinion is only binding law in Idaho and could certainly be appealed, it is the only published opinion ruling on the constitutionality of this type of statute. Opponents of similar statutes in other states will surely offer this opinion as persuasive authority that the same ruling should be made with regard to other challenges.

Second, the court pointed out that common law claims exist and could be asserted in the undercover video context, including trespass, fraud, theft and defamation. Additionally, the court stated that an agricultural operation could respond with its own public relations campaign to challenge the video.

Although the court is correct, it overlooks two significant issues. First, oftentimes there are reasons why filing civil suits against undercover videographers is not a practical option. For example, lawsuits are time-consuming and expensive, oftentimes the videographers leave the state or disappear altogether, and many times the videographers do not have sufficient assets to satisfy a judgment even if one could be procured.

Second, with regard to launching a media campaign after a video is released, it is difficult – if not impossible – to unring the bell after a video has gone public. Farms can spend a great deal of time, money and energy trying to reverse damage done by undercover videos, often to no avail.

Third, with the validity of “ag gag” statutes now in question, all operators should take care to avoid undercover video investigations on their operations. Although the dairy industry seems to have been front and center in these types of investigations, beef cattle operators could be targets as well. Investigations have certainly taken place at feedlots, packing houses and other beef-related operations.

Owners should take time to develop stringent hiring practices to avoid hiring an undercover activist, have in place a vigorous training program to ensure employees know and understand good animal care and husbandry practices, implement careful monitoring of employees and stock to identify problems that may occur, and prepare a crisis response team and plan in the event an incident does occur.