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Idaho squares off with animal rights group before 9th Circuit

Oral arguments are expected to be scheduled in April in Seattle in an “ag-gag” appeal that has pitted Idaho officials against the Animal Legal Defense Fund in a constitutional battle.

The case, Animal Legal Defense Fund et al v. Idaho Attorney General Lawrence G. Wasden, landed in the 9th U.S. Circuit Court of Appeals after U.S. District Court Judge B. Lynn Winmill tossed Idaho’s “ag-gag” statute.

Winmill, appointed to the federal bench by President Bill Clinton, struck down the statue on constitutional grounds.

Wasden filed the appeal on behalf of the Idaho with 9th Circuit which is headquartered in San Francisco. The case is one of four state laws involving agricultural trespass that are being challenged in federal courts by animal activists’ groups.

clownwithbignose_406x250In written arguments already filed in the appeal, Idaho officials come pretty close to mocking ALDF assertions that the First Amendment protects what the animal activists call “high value lies.”

Idaho’s Chief of Civil Litigation, Steven L. Olsen, contends that the many ALDF and numerous amici curiae “argue vigorously about what the law should be, not what it is.”

“The First Amendment does not displace the state’s authority to protect the right of landowners to limit access to the property,” Olsen argues. “Gaining access through misrepresentation infringes on that right. Neither journalists or special interest advocates have any constitutional dispensation from this rule, e.g. no First Amendment exception of ‘high value lies.’ ”

Nor, Olsen says, does the First Amendment turn the act of an audio or video recoding “into speech itself.”

“Subsequent expressive conduct must occur,” he wrote. “But even if otherwise qualifying for First Amendment protection, such recording is subject to the right of landowners to control the use of their property.”

ALDF postulates a novel interpretation of the rule, the Idaho AG’s brief says.

“Lies used to reveal and disclosure information of public concern — high value lies—warrant rigorous First Amendment protection,” according to ALDF.

The Idaho Legislature sought to curb the activities of animal activists and others who falsify employment applications to obtain access to private animal agriculture facilities in order to make video or audio recordings to what they find inside. So-called ag-gag laws typically make providing false statements on an employment application and making records in private facilities additional crimes of trespass.

Idaho says any “grasp on the First Amendment” is lost “once they cross the line and infringe on (as here) a settled right to control access to property and employment. Journalists stand in the same shoes as non-journalists, animal or food safety activists have no greater rights that persons seeking access or employment to achieve economic competitive advantage.”

ALDF points out a potential impact on long-time employees or what it calls “whistleblowers” and the possibility the “ag-gag” law might severely curb undercover reporting by journalists.

In addition to ALDF, other plaintiff-appellees include: People for the Ethical Treatment of Animals, American Civil Liberties Union of Idaho, Center for Food Safety, Farm Sanctuary, River’s Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment, Idaho Hispanic Caucus Institute for Research and Education, Counterpunch, Farm Forward and several individuals.

Idaho Gov. Butch Otter was released as a defendant before Judge Winmill issued his ruling.

The other states with ag-gag laws being challenged in federal court are Utah, North Carolina and Wyoming.

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