Federal court declares Utah’s ‘ag gag’ statute unconstitutional

This time, the decision came from Judge Robert J. Shelby in the United States District Court for the District of Utah.

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

Background

In 2012, following several other states, Utah passed a statute seeking to protect agricultural operations from undercover video exposés by animal rights groups. The Utah statute essentially contains four provisions, one related to lying and three related to filming. The statute criminalizes “obtaining access to an agricultural operation” under false pretenses.

This was an attempt to dissuade animal rights activists from providing false information in order to be hired as an employee at an agricultural operation in order to conduct undercover surveillance.

The recording provisions criminalize intentionally recording image or sound from an ag operation by leaving a recording device, filming an ag operation after applying for employment with an intent to film and trespassing to film an operation.

Just less than a year after the law went into effect, Amy Meyer was charged with violating the new law. She was arrested while standing in a public area filming a cow being moved by a bulldozer. Because Meyer was standing on public property, she did not violate the statute, and the case was dismissed by the state.

Meyer joined with two animal rights groups, PETA and the Animal Legal Defense Fund, and filed suit claiming the Utah statute violates the First and 14th Amendments.

Opinion

The court first held the plaintiffs had standing to sue. Here, both Meyer and the animal rights groups showed they had previously engaged in this type of undercover video investigation, and that they wanted to continue doing so but were dissuaded due to the threat of prosecution under the law.

Next, the court turned to the First Amendment claim. Plaintiffs allege the statute unconstitutionally restricts their right to free speech under the First Amendment. To determine if a violation exists, a court employs a three-part test: whether the First Amendment applies to this statute, what level of scrutiny applies and whether the state made the requisite showing to justify the restrictions.

1. The First Amendment applies. The state argued the lying provision of the act did not implicate the First Amendment because there is no constitutional protection for false information. The U.S. Supreme Court has said lies that cause “legally cognizable harm” fall outside the protection of the First Amendment. The state claimed the harm here was danger to animals and employees and trespass to property.

Although the court agreed danger to animals and employees would be legally cognizable harm, it found there was no evidence in the record that lying to obtain access would result in this danger. The court then held trespass could be a legally cognizable harm only if there was a trespass-type harm involved, such as interference with ownership or possession of the property.

Although the court recognized there could be some situations where this type of damage could occur (i.e., someone gaining access and then damaging the property), the act’s prohibition includes many more instances for which this type of damage would not occur and, thus, those instances would be protected by the First Amendment.

With regard to the recording provisions of the act, the state argued the act of recording is not “speech” as required for First Amendment protection. Movies are protected by the First Amendment, as are photographs, videos and sound recordings. Thus, the judge reasoned there should be no distinction between the end product – the recording – and the act of making those recordings. Several other federal appellate level courts reached the same conclusion.

Finally, the judge rejected the state’s argument there are no First Amendment protections on private property, thus speech on ag operations could not be protected, noting there is a difference between allowing a private property owner to exclude someone wishing to speak from their property and the state imposing criminal penalties for speech on private property.

2. Strict scrutiny applies. Because the First Amendment does apply, next the court turned to which level of scrutiny was appropriate. This depends on whether the prohibition was content-based or content-neutral. If a law is content-based, strict scrutiny applies.

If the law is content-neutral, intermediate scrutiny applies. The court found both the lying and recording provisions to be content-based, as they criminalize actions or recordings based on what they say. Thus, strict scrutiny is applicable.

3. The law does not withstand strict scrutiny. Under strict scrutiny, a law is presumed to be unconstitutional, and it is the burden of the state to show the restriction furthers a “compelling state interest” and is “narrowly tailored to achieve” that interest.

The state offered four interests to justify the statute: protecting animals from diseases brought in by workers, protecting animals from injury resulting from unqualified or inattentive workers, protecting workers from exposure to zoonotic diseases and protecting workers from injury resulting from unqualified or inattentive workers.

In determining whether these reasons were compelling, the court noted there was no evidence of diseases being spread or animals or employees being injured by undercover videographers offered. This meant the harm was entirely speculative, and harm that is “merely speculative” does not constitute a compelling state interest.

Further, the court reasoned, even if these were compelling interests, the court failed to show the act was narrowly tailored. The court found the act “seemingly not necessary to remedy the state’s alleged harms” and “an entirely over-inclusive means to address them.”

Thus, the court found that the statute was unconstitutional and violated the plaintiffs’ First Amendment rights. Utah has not yet stated whether it plans to appeal this decision to the United States Court of Appeals for the 10th Circuit.