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After Court Ruling, More Ag Gag Challenges to Come

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Luke Runyon/Harvest Public Media
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Idaho's dairy industry wrote and lobbied for that state's ag gag law.

After a federal judge struck down an Idaho law that made it illegal to take undercover video on farms and ranches, animal rights groups said they are primed to challenge similar so-called "ag gag" laws across the country.

Federal judge B. Lynn Winmill said Idaho’s ag gag law infringed on Constitutional free speech rights in an August decision. In wake of the ruling, Matthew Dominguez, a lobbyist with the Humane Society of the United States, says he felt vindicated.

“It has been a shot in the arm,” Dominguez says. He travels across the country attempting to convince lawmakers not to pass ag gag legislation. “We’ve seen ag gag bills be introduced all across the country, from your most ‘red states’ to your most ‘blue states.’”

“Ag gag” is the colloquial umbrella term for a few different types of laws. They’re crafted to curb undercover investigations by making certain acts illegal, like lying to an employer to gain access to a farm, or secretly recording an operation without the owner’s permission.

In the last decade ag gag laws have proliferated, Dominguez says. Now, with Idaho’s law declared unconstitutional, seven states have some form of an ag gag law on the books: Utah, Montana, Missouri, Iowa, Kansas, North Dakota and North Carolina. Wyoming’s governor signed a law in 2015 that limits “resource data” from being collected on private land.

“The groups that were involved with challenging this in Idaho are going to look to the courts to nullify and to strike down the existing ag gag laws,” Dominguez says.

That means a whole new slew of lawsuits could pop up. Utah’s law is already being litigated in federal court in a suit brought by the Animal Legal Defense Fund.

But the groups that push for this type of legislation, usually titled with names like “Farm Animal and Research Facilities Protection Act” or the “Agricultural Security Act,” maintain that the legality of undercover recording isn’t so clear cut. They say farmers should have a right to weed out agenda-driven activists from damaging their operations with splashy, highly-edited videos meant to tug on heart strings.

Idaho’s law, for instance, was meant to uphold the rights of landowners, says Bob Naerebout of the Idaho Dairymen’s Association, which drafted the initial bill.

“The legislation was designed and crafted to try and protect First Amendment rights while also trying to provide some personal property protection,” Naerebout says.

Imagine driving down a country road, he says. On either side you have large-scale industrial hog and cattle farms. You park the car on the public street, and pull out a camera.

“I have every right to sit here and film and document what’s going on,” Naerebout says. “When I’m on private property, like if I’m at your house, then there’s some restrictions.”

Animal rights activists say ag gag amounts to nothing more than retribution. An activist films abuse, publishes the video online, and months later lawmakers debate bills meant to restrict that exact act, either by criminalizing lying on an application or mandating quick reporting of abuse. They say ag gag laws have a chilling effect on undercover investigations, and on reporting animal abuse.

“The investigations have shifted to states that don’t have these laws,” says Justin Marceau, a law professor at the University of Denver and the lead attorney for the animal rights groups that challenged the Idaho law. “That’s kind of the purpose. If you pass a law in Idaho, you hope that the investigations will happen in Colorado, and hurt their businesses instead of Idaho’s.”

Ag gag could eventually wind its way to the Supreme Court, Marceau says. These types of laws bring up thorny constitutional issues, like whether lying or surreptitious video recording is protected speech.

“We all take for granted that the right to record for radio or TV is some speech type activity, but the Supreme Court has never had the occasion to say that,” Marceau says.

While animals rights groups are changing tactics in their battle against ag gag laws, the legislation itself is also undergoing an evolution. The most recent proposals have attempted to criminalize waiting longer than 24 or 48 hours to report animal abuse, or to press civil charges against activists who do undercover recording, as was the case in North Carolina. In the last four years, more than 30 ag gag bills have popped up in state legislatures across the country.

That evolution was on display in June 2015 in rural Morgan County, Colorado. Animal rights activists secretly recorded footage of workers kicking and stabbing dairy cattle at Cactus Acres Holsteins, tying the farm to its larger member organization, the co-op Dairy Farmers of America. Instead of waiting to issue a reaction, DFA representatives preempted the video release, publishing a longer raw version of the video themselves a couple of days before Mercy For Animals put up the edited footage on GotMisery.com.

“It is disheartening that groups like Mercy For Animals, which claims to have animal care and wellness at heart, seek change through deceit and misconception, rather than working with the industry to proactively address their concerns,” the DFA said in a statement put out before the Mercy For Animals video was released.

“When animal abuse is witnessed, it should be immediately reported, not recorded,” the statement reads.

After the video was released and racked up thousands of views, the dairy farm’s owners underwent audits and were put on suspension by Leprino Foods, the cheese company they supply milk to. No one in the case, including the workers, owners nor the activist who shot the video, have been charged with a crime. If it had been recorded in Iowa, for instance, the activist who shot it could face criminal charges.

“Every single year I think it’s going to get worse,” says Matthew Dominguez from the Humane Society. But now with legal precedent on his side, he says it’ll be easier to convince lawmakers not to pass ag gag laws.

“And after the ruling in Idaho, namely striking down the law as unconstitutional, I’m actually hopeful that the industry has learned their lesson,” Dominguez says.

The Idaho case isn’t entirely finished. The state is waiting for Judge Winmill to issue his formal order striking down the law. When that happens Idaho Attorney General Lawrence Wasden could appeal.

As KUNC’s reporter covering the Colorado River Basin, I dig into stories that show how water issues can both unite and divide communities throughout the Western U.S. I produce feature stories for KUNC and a network of public media stations in Colorado, Utah, Wyoming, New Mexico, Arizona, California and Nevada.