One way for legal issues to make their way to the Supreme Court is when the federal circuit courts don’t agree with one another. It’s too early to tell, but the legal tangle that’s been going on for most of the past decade over state laws to protect animal agriculture from outsiders might have to be settled by the Supremes.
Two years ago, the Ninth U.S. Circuit Court of Appeals decided Animal Legal Defense Fund (ALDF) v. Lawrence G. Wasden. It was a case that put Idaho’s so-called ag-gag law under the microscope. A three-judge panel largely sided with ALDF, striking most of the statute as incompatible with the U.S. Constitution.
The part of Idaho’s Interference with state’s ag-gag law — the Agricultural Production Act — that “survived constitutional scrutiny” was the lying part. Idaho’s law makes it a crime to tell falsehoods, such as on employment applications, to obtain access to agricultural properties.
“We are sensitive to journalists’ constitutional right to investigate and publish exposés on the agricultural industry. the Ninth Circuit ruling says. “Matters related to food safety and animal cruelty are of significant public importance. However, the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability. For this reason, we uphold the provisions that fall within constitutional parameters but strike down those limitations that impinge on protected speech.”
The Ninth Circuit’s appeals panel found Idaho’s criminalization of obtaining employment by misrepresentation with the intent to cause economic or other injuries as Constitutional. in that part of their decision, the panel overturned District Judge Lynn Winmill’s ruling that mainly found lying had First Amendment protection.
But where Idaho wanted to criminalize taking pictures or making audio or visual records without a property owner’s permission, the panel found those provisions violated the Constitution’s First Amendment.
While it was a divided ruling, the Ninth Circuit decision was a win for the ALDF and its allies. The Idaho Legislature drafted the statute after an undercover investigation of an Idaho dairy farm emerged with a video of workers abusing animals. The panel knocked down most of the ag-gag defenses.
Skip ahead, and Iowa’s ag-gag law is also found mostly unconstitutional. In three weeks, the Iowa Legislature passes a substitute law, and state Attorney General Tom Miller appeals the District Court decision to the Eighth Circuit in St. Louis.
That amounted to a kind of squeeze play by Iowa. The ALDF plaintiffs described it this way: “While plaintiffs believe that the newly enacted statute suffers from the same constitutional flaws as the enjoined ag-gag law, and will likely require more costly litigation between the parties, plaintiffs concede that the law is enforceable during the pendency of the appeal in this case, unless and until plaintiffs obtain temporary or preliminary injunctive relief enjoining the new law. “
During the past year, the parties to the appeal have all been busy trying to stay up with the briefing schedule handed down by the court. All the issues the Ninth Circuit had to deal with two years ago are back on the table. And the only difference is the long line of amici curiae briefs being filed by “friends of the court” who want to weigh in on the fight.
In Iowa AG Miller’s recent brief “ag-gag” is out, and “the ag-fraud statute is in.
“Plaintiffs urge this court to adopt a new rule under the First Amendment to protect ‘high-value lies’ because the lies promote discourse and transparency on matters of public concern,” Miller’s office writes. “Plaintiffs fail to identify any support for this argument in the Supreme Court’s jurisprudence on the application of the First Amendment to false speech, and more importantly, the Ninth Circuit has rejected the promise that the First Amendment protections depend upon judicial assessments of a lie’s social utility.”
Iowa’s recent brief also takes exception to the plaintiff’s argument that the ag-gag law “imposes a content and viewpoint-based restriction on speech” in violation of the First Amendment because an improper purpose allegedly motivated the statute.
“However, the face and purpose of Iowa’s ag-fraud statute are content and viewpoint-neutral, and courts are discouraged from looking past the text of an otherwise viewpoint-neutral statute to infer some invidious legislative intention,” Miller’s brief adds.
Interest in the Eighth Circuit case remains high. Those filing friends of the court briefs include the Iowa Federation of Labor, Iowa Freedom of Information, Brooke Kroeger, Ted Conover, Erwin Chemerinsky, the United Farm Workers of America, 23 media organizations and associations, and Scholars of First Amendment and Information Law. All are on behalf of the ALDF appellee(s).
After all the briefs are filed, oral arguments are expected, but there is no indication they’ve yet been scheduled.
(To sign up for a free subscription to Food Safety News, click here)