Funny thing about the federal courts. When enough of them get involved in an issue, they can end up showing how something can be done legally that previously was on shaky ground and subject to dispute when it all began. And we are not just talking about the Trump travel ban.
Six years ago in April, then New York Times columnist Mark Bittman coined the term “ag-gag” to refer to state laws that made it a crime to engage in the undercover filming or photography of animal agriculture without the owner’s permission. The laws were largely aimed at either animal activists who obtained employment on a farm solely for the purpose of collecting evidence of abuse or by employees who turned whistleblower to do the same.
This all started back in 1990-91 when North Dakota, Montana and Kansas passed such laws, but without much in the way of any prosecutions, everybody kind of forgot about them. Renewed interest in the concept began showing up after 2010. Idaho, Utah and Iowa all adopted their versions of “ag-gag” and with some variation so did Missouri and North Carolina.
A year ago, the North Carolina Legislature over-rode the Gov. Roy Cooper’s veto of that state’s new “ag-gag” law with, ironically, Cooper being named as the main defendant.
We thought with a third federal lawsuit, state lawmakers would take a break to see where this was going in the courts. But, we were wrong as last week, Gov. Asa Hutchinson signed Arkansas House Bill 1665 into law.
There is a little irony in this one too because the new Arkansas law is not a criminal statute, but just another cause of action for filing a lawsuit. If you are in animal agriculture in Arkansas and some animal activist records pictures in your private areas, you can sue them. The irony is, I am pretty well convinced, that animal activist organizations employ more lawyers than the insurance industry.
They sued Utah and Idaho for passing “ag-gag” laws, filing complaints alleging they were unconstitutional.
The award for being the most speedy goes to Idaho where federal Judge B. Lynn Winmill found the Gem State’s new law was unconstitutional on Sept. 4, 2014, just six months and a week after was signed into law by Gov. Butch Otter.
Judge Winmill’s 12-page ruling, which largely sided with the Animal Legal Defense Fund, was in short order appealed by the State of Idaho to the 9th U.S. Circuit Court of Appeals with oral arguments now scheduled for 9 a.m. on May 12 in Seattle.
And Winmill’s ruling is not only getting read carefully in the 9th Circuit, but in district courts in Utah and North Carolina, where “ag-gag” lawsuits are moving much slower than they did in Idaho.
In the District of Utah, federal Judge Robert J. Shelby held a five-hour motion hearing in November 2016 that produced a 162-page transcript. Reading that transcript one finds ADLF v. Otter, the Idaho case, getting a thorough autopsy.
Utah Assistant Attorney General Kyle J. Kaiser summed it up this way: “And so the plaintiffs are asking for new federal constitutional rights that really, really infringe on the rights of Utah citizens and the right of the State to control private property. As we talked about a little bit, there could be pretty serious consequences. That means there’s a First Amendment right to spy. That means there’s a First Amendment right, at least a threshold right, to get access to a competitor or to a group that you disagree with so that you can try to undermine them. That means there’s a federal constitutional right maybe to hack e-mails. I think the democratic party might disagree with that.”
Kaiser added: “And so whether it’s — whether the target government agency, a conservative group, a liberal group or private property to seek that sort of constitutional protection is pretty serious.”
How one of these cases helps or hurts the other would require more expertise than we are able to apply here. However, it is certain all of the lawyers on both sides are reading all the music.
In North Carolina, the U.S. District Court for the Middle District of North Caroline has scheduled a hearing for 3 p.m. on April 4 to consider a motion to dismiss the complaint by People for the Ethical Treatment of Animals, et. al. against Gov. Cooper.
In Utah, Judge Shelby’s ruling is due at any time. After that last lengthy motions hearing on Nov. 2, 2016, he ordered both sides to still brief him on one more item — the Utah State Code on “false pretenses.”
One tweak to the May hearing is attorneys for the Animal Legal Defense Fund are giving up four of their 20 minutes of oral arguments to Dean Erwin Chemerinsky with the Irvine School of Law at the University of California. He’s going in to argue that Judge Winmill’s decision to strike down the Idaho “ag-gag” law on First and Fourteenth Amendment grounds was correct.
During the Utah hearing, there was a mention that Dean Chemerinsky took the opposite position in litigation where similar tactics were used against Planned Parenthood. A California District Court prohibited the Center for Medical Progress going public with a video of Planned Parenthood folks talking.
“And that’s on appeal right now to the Ninth Circuit,” Utah’s assistant AG said. “Dean Chemerinsky, who wrote an amicus brief in opposition to us, wrote an amicus brief in support of the injunction in that case by saying that the Center for Medical Progress agreed when they went in the door to keep everything private, and this — that contractual right is — supercedes their First Amendment rights. There wasn’t even a discussion of private property there, which I think is interesting, but that cut off the First — any sort of First Amendment right.
So far, the appellate routes for whoever loses at the district court level are through the 4th, 9th, and 10th Circuits. If Arkansas is sued, you can add the 8th Circuit to that list. Before this is all over, it means every thing is going to be on the table — like contract rights, civil actions, and yes, those problematic criminal statutes.
We are just now starting to see all the chapters, but we sure don’t know how this is going to end.
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