A divided 3-member panel of judges from the Eighth Circuit has overturned an Arkansas district court ruling over one of the more complicated ag-gag cases.

It’s a big win for the Animal Legal Defense Fund, Animal Equality, Center for Biological Diversity, and the Food Chain Workers Alliance. On the losing side are Peco Foods Inc. and Jonathan and DeAnn Vaught.

Judge Bobby Shepherd dissented from Judges Steven Colloton and Roger Wollman in the majority opinion. All three were appointed to the appellate court by Republican Presidents. President Reagan named Wollman, and George W. Bush appointed both Shepherd and Colloton.

Currently serving her fourth term, DeAnn Vaught is an Arkansas state representative who authored the statute establishing a civil cause of action for unauthorized access to the property. After it became law, the animal activists wanted to prevent Peco Foods and the Vaught’s from bringing a civil suit against the plaintiffs under the Arkansas statute.

Arkansas’s Eastern District Court dismissed the action because the complaint failed to allege sufficient facts to establish standing. The Circuit Court panel reversed the district court and remanded it for future proceedings.

“The law prohibits a person ‘who knowingly gains access to a non-public area of a commercial property” from engaging in ‘an act that exceeds the person’s authority, ” says the panel’s opinion, which Judge Steven Colloton wrote.

“The plaintiffs, who describe themselves as ‘nonprofit organizations dedicated to reforming industrial animal agriculture,’ claim that the statute violates their rights of free speech under the First Amendment,” it continues.

The Arkansas law differs from the “ag-gag” laws used criminal statutes to discourage entry to animal agriculture properties.  A maximum $5,000 per day civil fine is possible, but there is no threat of jail time.

Peco Foods is a poultry producer and the Vaught’s raise hogs on a farm near the Arkansas town of Horatio.

In the appeal, the animal groups claimed their “undercover investigators.” were discouraged from gaining employment at Peco Foods or the Vaught farm by the possibility of lawsuits under the new statutes. They claim this amounts to being “chilled” from engaging in activity protected by the First Amendment.

The Arkansas district court found all of this as “too speculative,” but the circuit court majority ruled that a “credible threat of enforcement” exists.

Peco Foods and the Vaught’s were not able to persuade the panel’s majority that there is no credible threat of enforcement because they are private parties who have not threatened to sue.

The animal groups had written letters asking the businesses asking them to waive their rights.

In his dissenting opinion, Judge Shepherd writes that the plaintiffs “suffers no injury when his fears of prosecution are the product of mere imagination or speculation.”

He said the chain of events that might eventually result in the businesses suing the activist groups “might or might not occur.” Shepherd, an Arkansas native, called the whole thing as being “too speculate.”

He says the animal groups are not exercising self-censorship and their ability to engage in their desired speech is inhibited not the statute by a chain of events yet to occur.

In 2010, animal agriculture interests began crafting state laws that used criminal statutes to ban photography and recordings on farms. New York Times writer Mark Bittman labeled laws as “Ag-gag” for their limits on whistleblowers and undercover investigators.

In short order, several states adopted “Ag-gag” laws, including Idaho, Iowa, North Carolina, Utah, and Arkansas. Led by the Animal Legal Defense Fund, challenges came quickly to the laws for their limits on First Amendment rights.
ALDF has largely prevailed, although drafters of the laws have changed tactics. Later states, like Arkansas, used civil rather than criminal law.

Three states led by Kansas had adopted similar laws in 1990. Kansas withdrew its law in 2019 for violating First Amendment rights.


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