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Next up for ag gag: Appeal to 10th U.S. Circuit expected soon

During oral arguments before an appellate panel in Seattle in May, questions were flying so fast at responding attorney Justin Marceau that at one point Judge M. Margaret McKeown told him he could slow down, there would be time for his answers.

Cramped living conditions and lack of access to the outdoors are two of the alleged abuses animal activists sometimes try to capture with undercover photos and videos. Photo illustration

McKeown and Judges Carlos Bea and Richard Tallman are on the panel from the 9th U.S. Circuit Court of Appeals that is charged with ruling on Animal Legal Defense Fund (ALFD) v. (Idaho Attorney General) Lawrence Wasden.

They get to be the first federal appellate court to decide if animal agricultural interests have gone too far with their legal attempts to corral animal activists from bringing unwanted attention to what goes on behind closed barn doors. It’s the judges’ task to rule on Idaho’s so-called ag-gag law, which a Boise federal judge found entirely unconstitutional.

However, both the Fourth and Tenth Circuits either have or are likely to have “ag-gag” cases come before their judges. A federal judge in North Carolina in May dismissed a constitutionality challenge to that state’s ag-gag law, finding the animal activist groups lacked standing. They filed an appeal with the Fourth Circuit, which is still in preliminary stages.

Then on July 7, Utah’s ag-gag statute was ruled unconstitutional by a federal judge in Salt Lake City. A spokesman for the Utah attorney general did not respond to a Food Safety News inquiry about whether the state will appeal. Utah has two weeks left to file an appeal.

Marceau, the attorney who won the ruling striking down the Utah ag-gag law, says he is “relatively sure” the state will appeal. He says it is “something the plaintiffs welcome.” His team got their fees and expenses reimbursed by the State of Idaho —about $250,000 — when the Salt Lake City judge ruled against the state.

“Given the magnitude of the attorney’s fees that were accrue and will be taxed to Utah, perhaps they will not appeal and offer some sort of settlement in the form reduced fees, but that seems unlikely given how strongly the agricultural interests pursed this law,” Marceau said.

At those oral arguments in Seattle, the three-judge panel peppered Marceau and an Idaho assistant attorney general with questions that seemed to include all possibilities from upholding the lower court’s ruling to finding parts or even all of it might pass constitutional muster.

In response to those questions, Marceau argued the judges need to look at the statute in its entirely as “content based.” He would not accept that sections that sounded reasonable on a stand-alone basis should get a pass.

So-called battery cages such as these are targeted by animal rights activists because they restrict movement and crowd birds together. However, cage-free does not always mean the chickens are allow to run free on the range.

The Idaho and Utah ag-gag laws both prohibit misrepresentations to gain access to commercial agriculture operations. Both prohibit nonconsensual video recordings of such operations.

Unlike Idaho and Utah, North Caroline did not use criminal law in crafting its ag-gag statute. Instead, the North Carolina Property Protection Act, passed over then-Gov. Pat McCrory’s veto, establishes a new agricultural cause of action for civil lawsuits.

“Ag-gag” is a term the media invented to describe state laws that go beyond typical trespass laws to protect animal agriculture operations from unwanted attention though the prohibition of undercover photography or filming without owners’ consent. They also prohibit obtaining access to ag operations by lying on employment applications.

In 1990-92, such prohibitions were adopted in Montana, North Dakota and Kansas with virtually no prosecutions. Idaho, Utah and Iowa adopted similar statutes after 2010 and bills were introduction in several other states. Missouri strengthened trespass restrictions and required 24-hour animal abuse reporting.

State legislative bodies, who have not been much interested in ag gag since 2016 or before, appear to be waiting for federal court instructions on how such restrictions can be imposed without constitutional violations.

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