At this point, you would need a large barn yard just to hold all the attorneys who are involved and waiting for a decision by a federal judge on Utah’s ag-gag law. U.S. District Court Judge Robert J. Shelby for the District of Utah has had the issue on his docket since July 22, 2013. He is now at least close to a ruling.
Another federal judge threw out Idaho’s ag-gag law, dispatching it 17 months after it was filed on March 17, 2014. But Idaho was not happy with federal Judge B. Lynn Winmill removing its law from the books. The state has asked the 9th U.S. Circuit Court of Appeals in San Francisco to flip the Winmill ruling, and volumes of arguments are stacked up for anybody who wants to read them before there’s an appellate decision. No one is predicting when that will occur.
Federal district courts in Idaho, Utah and North Carolina have taken on the challenges to state ag-gag laws adopted after 2012 and challenged by animal activists led mostly by the Animal Legal Defense Fund (ALDF).
After hearing oral arguments this past week in Utah, Judge Shelby has taken that case under advisement. His ruling could come at any time. Shelby is a Republican appointed by President Barack Obama.
Idaho, Utah and North Carolina are among eight states that have passed ag-gag laws in the past 25 years. The laws are not identical, but they contain some common elements like prohibiting video-taping or filming or private property without permission. Also, they often include penalties for lying on employment applications.
Taken together, these provisions make it illegal to use common strategies animal activists use to go undercover in animal agriculture operations.
During the recent oral arguments in Utah, animal activist attorney Matthew Liebman said once the law prohibits recording, it brings constitutional free-speech provisions into play. He said a state law cannot take topics and declare them off limits. However, Utah Assistant Attorney General Kyle Kaiser said the law does not deal with content — it just prohibits recording or taping without permission of the private property owner.
In Idaho, Judge Winmill’s ruling adopted ADLF’s Motion for Summary Judgement, a complete win at the trial court level that cost Idaho taxpayers $250,000 in reimbursements to the activists groups. Winmill was appointed by President Bill Clinton. He is a Democrat.
In striking down the Idaho law, Winmill said it violates the First Amendment and Equal Protection Clause of the U.S. Constitution. Winmill agreed with ADLF that Idaho’s ag-gag law gained legislative approval only because of “legislative animus” directed at “animal rights activists.”
Idaho Attorney General Lawrence G. Wasden, who filed the appeal to the 9th Circuit in San Francisco, pointed to mistakes Winmill made by going down the line with ALDF’s argument. For example, ADLF said the equal protection claim required a “heightened form of rational basis review,” a term never used by the Supreme Court.
One thing is for certain. All three district court decisions, when they do occur, will, if appealed, go to different circuit courts. Idaho is in the 9th Circuit in San Francisco; Utah is in the 10th Circuit in Denver and North Carolina is in the 4th Circuit in Richmond.
The North Carolina case was filed by the animal activists on Jan. 13 and they are still trading responses with North Carolina defendants led by state Attorney General Roy Cooper.
It might be years before these three states are through the entire appellate process. Other states with ag-gag laws that also might have a stake in the outcomes of these three are: Kansas, Montana, North Dakota, Iowa and Missouri.
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