Ninth Circuit Appeals Court Strikes Down Key Provisions of Ag-Gag Law 

click to enlarge - Demonstrators protesting in Feb. 2014 against the passage of the Ag-Gag bill. -  - HARRISON BERRY
  • Harrison Berry
  • Demonstrators protesting in Feb. 2014 against the passage of the Ag-Gag bill.
The Ninth Circuit Court of Appeals upheld some provisions of a controversial Idaho law that criminalizes recording without consent at dairies in the Gem State, but struck down others.

The ruling, which came down Jan. 4, was a rebuke to lawmakers who sought to protect the dairy industry from scrutiny, and a victory for animal rights and free speech advocates.

A panel of judges found portions of the law were "staggeringly overbroad" and "a classic example of a content-based restriction that could not survive strict scrutiny." The panel upheld sections of the law about obtaining employment under false pretenses, but came down hard against provisions criminalizing videotaping or photographing inside agricultural facilities in Idaho.

ACLU-Idaho Community Engagement Manager Jeremy Woodson called the ruling a success.

"What the judges or the court has decided is that now we can use investigative journalism methods to document what's going on at factory farms. What that means is, if you work at a factory farm, and you're experiencing problems with animal cruelty, the way they can document that is now allowed," said Woodson.

click to enlarge - 2014: Elham Marder (front) and Matt Rice (back) delivering petitions to Gov. Otter, asking him to veto the Ag-Gag bill . - HARRISON BERRY
  • Harrison Berry
  • 2014: Elham Marder (front) and Matt Rice (back) delivering petitions to Gov. Otter, asking him to veto the Ag-Gag bill .
The Ag-Gag law made it illegal to record video or take photographs at Idaho agricultural facilities without the consent of the owner, or get a job at an Idaho agricultural facility through misrepresentation in order to cause economic injury. The latter provisions were upheld, but, said ACLU-Idaho Legal Director Ritchie Eppink, "on some very skinny legs."

"Any prosecutor in Idaho will have to think two or three times before charging someone under this," Eppink said.

The Ag-Gag bill became a source of controversy upon being introduced, sparking demonstrations at the Idaho State Capitol and prompting a petition drive asking Gov. C.L. "Butch" Otter to veto the bill.
It was passed by the Idaho Legislature and signed into law by Otter in 2014.

The law was promptly challenged by a coalition of organizations, including ACLU-Idaho, the Animal Legal Defense Fund and PETA.

By August 2015, the U.S. District Court for the District of Idaho had ruled against the state, writing, "The remedy is more speech, not enforced silence." The State of Idaho appealed to the Ninth Circuit, initiating a two-year legal battle.

For Eppink, the ball is in Idaho's court now. The state may accept the Ninth District ruling or appeal to the U.S. Supreme Court, though many of the core objectives of the coalition that sued the State of Idaho have been achieved.

"These decisions have made clear that this is an area that the First Amendment and the Constitution protect the rights of journalists, investigators, employees and others to document and report these violations. It's a victory in that sense," Eppink said.

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