by Will Potter on August 3, 2015 (From Green Is
The New Red)
U.S. District Court has struck down Idaho's
"ag-gag" law as
an unconstitutional attempt by the agriculture industry to silence journalists,
animal advocates, and whistleblowers who expose cruel farming practices.
damning ruling--the first of its kind--spells trouble for the agriculture
industry's attempts in other state to outlaw photography and video recordings of
animal welfare, workers' rights, and environmental violations.
The ag-gag law "gives agricultural facility owners veto power, allowing owners
to decide what can and cannot be recorded, effectively turning them into
state-backed censors able to silence unfavorable speech about their
facilities," Judge Lyn Winmill said in the ruling.
lawsuit was brought by the
Animal Legal Defense Fund and PETA, working with plaintiffs including
undercover investigators, Farm Forward, and myself as a journalist.
A wide-range of organizations supported the lawsuit by filing amicus briefs.
They represented food safety, environmental, labor, whistleblower, and
Ag-gag Would Send Upton Sinclair to Jail
Judge Winmill paid particular attention to the
impact of ag-gag on journalism and newsgathering.
"The story of Upton Sinclair provides a clear illustration of how the First
Amendment is implicated by the statute," Winmill writes. "Sinclair, in order to
gather material for his novel, The Jungle, misrepresented his identity so he
could get a job at a meat-packing plant in Chicago. Sinclair's novel, a
devastating exposé of the meat-packing industry that revealed the intolerable
labor conditions and unsanitary working conditions in the Chicago stockyards in
the early 20th century, "sparked an uproar" and led to the passage of the
Federal Meat Inspection Act, as well as the Pure Food and Drug Act. Today,
however, Upton Sinclair's conduct would expose him to criminal prosecution under
…as the story of Upton Sinclair illustrates, an agricultural facility's
operations that affect food and worker safety are not exclusively a private
matter. Food and worker safety are matters of public concern. Moreover, laws
against trespass, fraud, theft, and defamation already exist."
Ag-gag Intends to Silence Critical Speech
In additional to violating the First Amendment, by criminalizing newsgathering
and distribution, ag-gag is also a violation of the Equal Protection Clause of
the U.S. Constitution "because it was motivated in substantial part by animus
towards animal welfare groups," Winmill said.
"The overwhelming evidence gleaned from the legislative history indicates that §
18-7042 was intended to silence animal welfare activists, or other
whistleblowers, who seek to publish speech critical of the agricultural
production industry," Winmill writes. "Many legislators made their intent
crystal clear by comparing animal rights activists to terrorists…"
Corporations Don't Deserve Special Protection From Activists
The ruling should also bring into question other legislation, such as the Animal
Enterprise Terrorism Act, which clearly targets one group of people because of
what they believe.
"…the State fails to provide a legitimate explanation for why agricultural
production facilities deserve more protection from these crimes than other
private businesses," Winmill writes. "…Protecting the private interests of a
powerful industry, which produces the public's food supply, against public
scrutiny is not a legitimate government interest."
Dear Utah: You're Next
The ruling sets the stage for ag-gag laws to be challenged in other states on
similar grounds. The ALDF, PETA and others are currently fighting ag-gag in
The recent passage of North Carolina's sweeping ag-gag laws, which is so broad
includes those who expose abuse at daycares and nursing homes, clearly
cannot withstand scrutiny, either.
The ruling is a strongly-worded defense of the First Amendment and
investigators, and a harsh attack on attempts by corporations to carve out
special protections under their law, solely to protect their profits.
As Judge Winmill notes, "food production is not a private matter." It affects
all of us. And all consumers have the right to know what is being done in their