The glory days of muckraking journalism are revisited via an Amicus Curiae brief filed recently on behalf of Utah and national media groups who want to take the sting out of the Beehive State’s “ag-gag” law. But the plaintiffs the media groups are supporting all lack standing, according to Utah Attorney General John Swallow, and that could make the challenge to the state’s law nothing more than an academic exercise that should be dismissed. The state’s motion to dismiss, originally made last October, will be heard on Feb. 6 by federal Judge Robert J. Shelby. Recently appointed to the federal bench by President Obama, Shelby gained notoriety last Dec. 20 for his decision favoring same-sex marriages in conservative Utah. The first challenge to the constitutional underpinnings of a state “ag-gag” law, the Utah case has also attracted national attention. It stemmed from the arrest last Feb. 8 of Salt Lake County resident and animal activist Amy Meyer. Draper City Police took Meyer into custody for what turned out to be nothing more than recording images of a local slaughterhouse from public property. A recently enacted Utah “ag-gag” law attempts to make the same activity illegal if filming occurred on private property. Meyer’s attorney was successful in getting the charges dismissed without prejudice, meaning theoretically the charges could refiled, but it’s highly unlikely. Had she actually been prosecuted, Meyer’s standing in the case would be much more difficult to challenge. Utah’s “Agricultural Operation Interference” law is being challenged on constitutional grounds by animal rights groups with lawyers from the University of Denver. The case was filed last July in the Utah federal district court in Salt Lake City. The “Agricultural Operation Interference” law went into effect in Utah in 2012. It criminalizes:
- Surreptitiously leaving a recording device in an agricultural operation.
- Obtaining access to an agricultural operation under false pretenses.
- Obtaining employment for the purpose of recording the operation and production of a recording thereof.
- Recording an agricultural operational while committing criminal trespass.
Violations are Class A & B misdemeanors under Utah law. The Reporters Committee for Freedom of the Press has filed an amicus brief on behalf of 17 media organizations, including the Deseret News, Utah Headliners Chapter of the Society of Professional Journalists, the Salt Lake Tribune, KSL Broadcasting and KSTU Fox 13. National media groups include the Association of American Publishers, Inc., First Amendment Coalition, Investigative Reporting Workshop, National Press Photographers Association, National Public Radio, The Newspaper Guild-CWA, New Jersey Media Group, Inc., California Publishers Association, Gannett Co., Stephens Media, and the Student Press Law Center. “While no journalist has the right to trespass on private property, the overbreadth of the Utah statute poses a substantial risk of criminalizing lawful — and constitutionally protected — newsgathering activity,” states the media amicus brief filed in the case. Also the brief responds to the Utah AG’s argument about the potentially shaky standing of the plaintiffs in the case by claiming, “courts have long recognized a more flexible standing requirement in First Amendment cases.” But the heart of the media case is that the Utah “ag-gag” statute “infringes on the First Amendment rights of those who want to inform the public about important matters such as food safety.” They argue the media’s “watchdog” role has a “long and time-honored history” going all the way back to Upton Sinclair’s book “The Jungle,” a novel of fiction that is remembered as an exposé of Chicago’s slaughterhouses from more than a century ago. The amicus brief says it was Sinclair’s undercover work, research and interviews that resulted in Congress passing both the Pure Food and Drug Act and the Meat Inspection Act in 1906. They point to how journalists who have followed Sinclair, such as Nick Kotz at the Minneapolis Tribune in the 1960s and Michael Moss at The New York Times in 2010, won Pulitzer Prizes for investigative reporting specifically about the meat industry. “The government’s inspection system itself is often flawed, which makes independent observation and verification even more important,” states the brief. “At times inspection teams are short-staffed, and inspectors can be undermined by their supervisors or choose to turn a blind eye to problems.” The brief written for the media groups asserts that agricultural operations are sufficiently protected by trespass, fraud, and the other laws designed to protect private property. “Clearly, the public interest in a safe food supply outweighs whatever interests meat-processing plants may have in keeping their operations concealed from public view,” they add. As for the standing issue, the amicus brief argues that journalists and the public are allowed more leeway where First Amendment issues are at stake. They say the statute currently impairs the work of the several journalists who are named plaintiffs in the case.