Attorneys for Utah Governor Gary R. Herbert and Attorney General John Swallow argue that the federal lawsuit that’s been filed against the state’s new “ag-gag” law is not ready for prime time and should be dismissed.
They say the plaintiffs lack standing, including Amy Meyer, the Salt Lake County animal activist who was the first person charged under Utah’s “Agricultural Operation Interference” act, which became law in 2012. Meyer may be the first person in the nation charged under an “ag-gag” law, which is generally designed to prohibit people from recording activities at agricultural operations.
Federal courts are required to not only determine that a real case or controversy exists, but to make sure the plaintiffs have a genuine legal interest at stake that is directly threatened by the defendants. This doctrine of “standing” exists to prevent the courts from spending their time churning out “advisory opinions.”
Meyer became something of a celebrity when she was arrested on Feb. 8, 2013, after taking pictures from public property of a slaughterhouse in Draper, UT. Her attorney got the charges dropped.
As a plaintiff in the federal lawsuit, the state attorneys general wrote that Meyer has “concrete plans to engage in First Amendment activities related to that activism generally and to animal agriculture specifically, though Meyer does not describe what those concrete plans are.”
As a result, they say Meyers has no more standing than any of the other plaintiffs, including the Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), and several other individual activists.
“Because Plaintiffs lack standing to challenge the statute, the Court should dismiss Plaintiffs’ complaint in its entirety,” the assistant attorneys general wrote. They say that to challenge the validity of a criminal statute that is not being prosecuted requires that there be someone who is under a “real and immediate threat of future prosecution.”
None of the plaintiffs meet this “credible threat” test, they argue, adding, “Thus, a plaintiff does not obtain standing based merely on a subjective fear of future prosecution.” The plaintiffs in this case do not have the facts to take their claims from speculative to the concrete, states their motion to dismiss.
Utah’s “ag-gag” law criminalizes four types of conduct. The assistant attorneys general state that those are: 1) Placing a recording device on the property of an agricultural operation; 2) Obtaining access to an agricultural operation under false pretenses; 3) Applying for employment under false pretenses and then conducting a surreptitious recording; and 4) Recording while committing criminal trespass.
“Ag-gag” laws are intended to shut down animal welfare groups from doing undercover investigations of animal agriculture facilities, but numerous legal experts say such laws trample on First Amendment rights by prohibiting the taking of pictures or movies or making sound recordings.
For their part, the plaintiffs have not yet responded to Utah’s motion to dismiss the case. They have support for their assertion that Utah’s “ag-gag” law is unconstitutional from experts such as Timothy Zick, professor of law at the College of William and Mary, and Ani Satz, professor of law at Emory University.
“Ag-gag bills like Utah’s are completely antithetical to the First Amendment,” Zick says.
“Utah’s ag-gag law is unconstitutional,” adds Satz. “It limits free speech by criminalizing undercover reporting on factory farms – targeting and chilling political speech about animal well-being and food safety.”
While animal activists usually go undercover to document egregious instances of animal cruelty, they have often turned up major food safety violations.
The plaintiffs’ response and hearing are expected to follow in December. Gov. Herbert and Attorney General Swallow are named as defendants not as individuals but because of the offices they hold.
Utah is one of a half-dozen states to adopt an “ag-gag” law. The others are Kansas, Iowa, Montana, North Dakota and Missouri. About two dozen other states have rejected similar measures in the past two years.© Food Safety News