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Mixed district court ‘ag-gag’ rulings are getting appellate review

The question of whether otherwise illegal acts — like lying on an employment application —  are Constitutionally protected if they prevent enterprising reporters or animal activists from being successful is now framed before a three-judge panel of the 9th U.S. Circuit Court of Appeals meeting in Seattle.

uscourthouse_406x250And two more District Court decisions could soon have the same issues being considered in appellate courts in Richmond, VA (Fourth Circuit) and Denver (Tenth Circuit.)

The 9h Circuit panel of Judges  — M. Margaret McKeown, Richard Tallman, and Carlos Bea — heard oral arguments in Seattle in the appeal of Idaho’s protection statute for animal agriculture that was struck down in 2015 for being unconstitutional by U.S. District Judge B. Lynn Winmill.

Idaho’s statue was called an “ag-gag” law by animal rights activists who challenged it in the U.S. District Court for Idaho after it was adopted by the Idaho Legislature. The District Court judge went against the state, saying the Idaho law “was motivated in substantial part by animus toward animal welfare groups” and adding that “it impinges on free speech, a fundamental right.”

While the 9th Circuit panel took the Idaho appeal under advisement, another district court has booted another “ag-gag” challenge out of court entirely.

U.S. District Court Judge Thomas D. Schroeder has dismissed a challenge to North Carolina’s Property Protection Act, also considered an “ag-gag” law. The judge dismissed the case because the plaintiff’s, led by People for Ethical Treatment for Animals (PETA), failed to show they’d suffered any “injury in fact,” meaning the court lacks jurisdiction over PETA’s claims.

“In analyzing whether plaintiffs have standing, the court must be careful to avoid ‘putting the merits cart error the standing horse,’ ” Schroeder wrote in the ruling dismissing the case “without prejudice.”

So-called “ag-gag” laws differ from state to state. North Carolina created a new civil cause of action that employers may use against any employee who “captures or removes” documents from the employer’s premises or records images or sound from premises and then uses documents or recordings to breach the employee’s duty of loyalty to the employer.

Idaho added to its criminal law to impose up to a $5,000 fine and a maximum one year in jail for secretly filming or recording animal agriculture facilities without permission. It is closer to Utah’s “ag-gag” law than North Carolina’s.

U.S. District Court Judge Robert J. Shelby could rule any day on the Animal Legal Defense Fund-led challenge to Utah’s law. He heard oral arguments in October 2016 in the case filed in 2013, and then asked the parties for briefs on “false pretenses” as used under Utah law. Since gathering the work, the judge has accepted some supplemental briefs, but has not ruled on the merits.

The eight well-funded animal rights groups who lost in Schroeder’s court are all but certain to ask the 4th Circuit to review the case. Shelby’s ruling on the Utah statute will likely be appealed by the losing party to the 10th Circuit in Denver.

Kansas, North Dakota and Montana passed the first laws to exclude outsiders more than 25 years ago. Idaho, Utah, North Carolina, Missouri and Idaho have all approved “ag-gag” laws since 2010.

 

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