Idaho’s new “ag-gag” law is unconstitutional, U.S. District Court Judge B. Lynn Winmill ruled on Monday. A spokesman for Idaho’s attorney general said the state has not decided if it will appeal the decision to the U.S. Court of Appeals for the Ninth Circuit in San Francisco. Idaho’s is the first “ag-gag” statute to be struck down by a federal court. Seven other states have adopted similar statutes in the past few years. Winmill took 97 days to write his 28-page decision after hearing oral arguments in the case last April 28. He had signaled his belief that the case had merit the previous September when he ruled against Idaho’s motion to dismiss the case brought by the Animal Legal Defense fund. Idaho Gov. C.L. “Butch” Otter signed the “ag-gag” law after it quickly passed through the state Legislature in 2014. The legislative action came after the Los Angeles-based animal rights group known as Mercy for Animals produced an undercover video of the Dry Creek Dairy in Hansen, ID. The video showed workers at the facility, associated with Bettencourt Dairies, abusing milk cows in multiple ways.

Chief District Judge B. Lynn Winmill
U.S. District Court Judge B. Lynn Winmill
Winmill said the Idaho Dairymen’s Association then drafted and sponsored the bill to “criminalize the types of undercover investigations that exposed the activities at the Dry Creek Dairy.” The federal judge said the Idaho “ag-gag” law includes (1) criminalizing all employment-based undercover investigations, and (2) criminalizing investigative journalism, whistleblowing by employees, or “other expository efforts that entail images or sounds.” The Boise-based judge made it clear in his decision that he had caught the entire “ag-gag” debate in the Idaho Legislature. He recalled a state senator who compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.” He noted that the same senator called Mercy for Animals-like investigations “terrorism” used for centuries “to destroy the ability to produce food and the confidence in the food’s safety.” Winmill also recalled state representatives who charged Mercy for Animals with “taking the dairy industry hostage and seeking to persecute them in the court of public opinion.”And, he noted, the sponsor of the bill said he wanted to shield the Idaho dairy industry from undercover investigators and whistleblowers. Led by Denver University law professors, the Animal Legal Defense Fund challenged the law on Equal Protection and First Amendment grounds. “An employee can be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission,” Winmill wrote in his ruling striking down the Idaho law. “Any person who violates the law — whether an animal rights’ investigator, a journalist, or an employee — faces up to a year in jail.” “In addition,” he continued, “a journalist or whistleblower convicted under the law can be forced to pay publication damages pursuant to a restitution provision that requires payment for ‘twice’ the ‘economic loss’ a business suffers as a result of any expose revealing animal abuse or unsafe working conditions.” Winmill stated that the purpose of the Idaho “ag-gag” law is to “limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values.” The Idaho media’s use of undercover investigations — including those on life on the streets, wolf hunting, family planning services and public safety — were cited by Winmill as examples of important political speech in the state. He rejected the state’s argument that the purpose of the statute is to protect private property and noted that “food and worker safety are matters of public concern.” Winmill ruled that Idaho’s “ag-gag” law violates both the Equal Protection Clause and the First Amendment. “This is a victory for the Constitution, and animals and consumers nationwide,” Mercy for Animal’s President Nathan Runkle said. “Judge Winmill’s decision to strike down Idaho’s dangerous and unconstitutional ag-gag law is the first step towards restoring transparency in U.S. food production.” Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden, said the state is reviewing the decision. Food Safety News invited the Idaho Dairymen’s Association to comment, but the organization had not yet responded as of press time. In a statement, lawyers for the winning side called the Idaho decision “a landmark victory for a broad-based public interest coalition of national nonprofits, including the Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), the American Civil Liberties Union (ACLU) of Idaho, and Center for Food Safety (CFS).” A similar case against Utah’s “ag-gag” law is proceeding in federal court in Salt Lake City. It was also brought by the Animal Legal Defense Fund. Utah appeals go the U.S. Court of Appeals for the Tenth Circuit in Denver. Differing decisions in two different circuits — if and when that occurs — can sometimes be a ticket to the U.S. Supreme Court.

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