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Idaho's 'Ag-Gag' Law Criminalizes Muckrackers, So a Federal Judge Struck It Down

Citing Upton Sinclair's classic exposé 'The Jungle,' a US District Court judge said Idaho's law is unconstitutional because it violates the First Amendment to the US Constitution.
August 6, 2015, 4:20pm
Photo by Charlie Litchfield/AP

A federal judge in Boise, Idaho, ruled on Monday that the state's so-called "ag-gag" law violates the United States Constitution, the first time that has happened to this kind of statute. The law made it illegal in Idaho for a person in certain types of agricultural facilities to take photos or videos without the permission of the owner, and carried a penalty of up to a year in prison.

Ag-gag laws are aimed at punishing and deterring whistleblowers and activists who discreetly document the abuse they witness on factory farms or slaughterhouses.

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US District Court Judge B. Lynn Winmill said that Idaho's law violated both the free speech guarantee of the Constitution's First Amendment as well as the document's Equal Protection Clause. He wrote that undercover investigations on issues like animal rights are a form of speech, and even invoked Upton Sinclair's The Jungle, the seminal muckraking novel from 1906 about the meatpacking industry, in his verdict.

"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," Winmill wrote. "Today, however, Upton Sinclair's conduct would expose him to criminal prosecution under [Idaho's law].

Related: If You're in Wyoming, Don't Take Pictures of Cattle Ranches

Matthew Liebman, a senior attorney for the Animal Legal Defense Fund (ALDF), told VICE News the ruling was vindication of the public's right to know about how food is produced.

"It's really a significant win for transparency, for animal rights, for public safety, for workers' rights, so obviously we're thrilled with it," he said.

The ALDF, along with other groups like People for Ethical Treatment of Animals, led the challenge against the statute soon after it became law in early 2014.

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"This statute is part of a concerted nationwide effort to pass ag-gag laws over the last 10 years or so," Liebman added. "There's been a lot of undercover investigation at animal agricultural facilities. Every single one has revealed extreme cruelty." That cruelty can be either intentional, he said, or just part of the routine reality of factory farming.

In this case, the passage of the law followed a grim 2012 video made by Mercy for Animals that shows cows being beaten by workers.

"It's wonderful to see a federal judge stand up and confirm what we already knew," Matthew Dominguez, who fights the enactment of such laws for the Human Society of the United States, told VICE News. "Ag-bag bills and ag-gag laws — they're unconstitutional, they're bad for the public, [and] they promote animal cruelty."

Senator Jim Rice, a lawyer who voted for the law and also chairs the state's agricultural affairs committee, said that he does not agree with the judge's decision that the law violated free speech and also that he supports the timely reporting of animal abuses.

"We want people to report animal abuse and cruelty," Rice told VICE News.

One of the purposes of the law is to protect private property, he said: "If you want to film on somebody's private property, you have to have their permission."

He said that abuse should be reported quickly and through the proper channels, so that an animal could receive medical care from a veterinarian if it needs it.

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"Abused cows don't give as much milk," Rice added, meaning that dairy owners have an incentive to stop abuse. "Not just because dairy farmers tend to be people who care about their cows — and they really do — but also there is a tremendous financial incentive to making sure that the cows are not abused."

Related: North Carolina's 'Ag-Gag' Law Might Be the Worst in the Nation

As of 2011, Idaho was the third-largest milk producer in the United States, according to the USDA.

The Animal Agriculture Alliance, a food industry communication organization based in Virginia, said that activists who publish videos taken on farms do not actually want to reveal abuse.

"What they are about is the use of illicit, underhanded, and manipulative tactics to produce videos to mislead the public into thinking their food is inhumanely produced," Kay Johnson Smith, the group's president, said in a statement. "These groups' ultimate goal is ending animal agriculture by misrepresenting the industry — and that's what farm protection legislation is meant to guard against."

The judge's ruling is a victory for animal-welfare activists and whistleblowers, but it comes on the heels of a setback earlier this summer when North Carolina enacted into law a broad, controversial ag-gag bill despite a veto from the state's governor.

In addition to North Carolina, ag-gag laws are currently in effect in Utah, Iowa, and Missouri; other ag-gag laws that date from the 1990s are in place in North Dakota, Montana, and Kansas, according to Will Potter, author of the book Green Is the New Red. Potter has followed the ag-gag laws as well as what he describes as the trend of animal rights movement being slapped with a terrorist label.

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Potter, a plaintiff in the suit against Idaho's law, referred to the judge's decision as a "truly landmark constitutional victory."

He said that he disagrees with the argument that people like Rice make about the protection of private property and reporting abuse through the proper channels. For one, he said, the national food industry, with its billions of animals and enormous scope, is in the public interest, and not a private concern.

As for abuse, he said, "The industry loves to say, 'Well, we want to stop abuse.'"

"They define abuse as anything except what they're doing every single day," he continued. That includes practices, like chickens being debeaked, which the industry or the government does not consider to be abusive, but consumers do, he said. "And part of these investigations, I think the most important part, is showing consumers what happens every single day."

Watch "The Way Americans Eat — The Business of Life (Episode 8)" here: 

Follow Rob Verger on Twitter: @robverger