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After Idaho Ruling, Activists Set Their Sights On More States' Ag Gag Laws

Luke Runyon
/
KUNC, Harvest Public Media
Idaho's dairy industry pushed for that state's ag gag law.

After a federal judge to take undercover video on farms and ranches, animal rights groups say they are primed to challenge similar so-called 鈥渁g gag鈥� laws across the country.

Federal judge B. Lynn Winmill said Idaho鈥檚 ag gag law infringed on Constitutional free speech rights in an August decision. In wake of the ruling, Matthew Dominguez, a lobbyist with the Humane Society of the United States, says he felt vindicated.

鈥淚t has been a shot in the arm,鈥� Dominguez says. He travels across the country attempting to convince lawmakers not to pass ag gag legislation. 鈥淲e鈥檝e seen ag gag bills be introduced all across the country, from your most 鈥榬ed states鈥� to your most 鈥榖lue states.鈥欌€�

Ag gag is the colloquial umbrella term for a few different types of laws. They鈥檙e crafted to curb undercover investigations by making certain acts illegal, like lying to an employer to gain access to a farm, or secretly recording an operation without the owner鈥檚 permission.

During Colorado鈥檚 2015 legislative session, Senator Jerry Sonnenberg, a Republican from Sterling, introduced a bill that would鈥檝e mandated instances of animal abuse be reported within 48 hours. The measure was eventually tabled.

"The groups that were involved with challenging this in Idaho are going to look to the courts to nullify and to strike down the existing ag gag laws."

In the last decade ag gag laws have proliferated, Dominguez says. Now, with Idaho鈥檚 law declared unconstitutional, on the books: Utah, Montana, Missouri, Iowa, Kansas, North Dakota and North Carolina. Wyoming鈥檚 governor signed a law in 2015 that limits 鈥渞esource data鈥� from being collected on private land.

鈥淭he groups that were involved with challenging this in Idaho are going to look to the courts to nullify and to strike down the existing ag gag laws,鈥� Dominguez says.

That means a whole new slew of lawsuits could pop up. Utah鈥檚 law is already being litigated in federal court in a suit brought by the Animal Legal Defense Fund.

But the groups that push for this type of legislation, usually titled with names like or the maintain that the legality of undercover recording isn鈥檛 so clear cut. They say farmers should have a right to weed out agenda-driven activists from damaging their operations with splashy, highly-edited videos meant to tug on heartstrings.

"The legislation was designed and crafted to try and protect First Amendment rights while also trying to provide some personal property protection."

  Idaho鈥檚 law, for instance, was meant to uphold the rights of landowners, says Bob Naerebout of the Idaho Dairymen鈥檚 Association, which drafted the initial bill.

鈥淭he legislation was designed and crafted to try and protect First Amendment rights while also trying to provide some personal property protection,鈥� Naerebout says.

Imagine driving down a country road, he says. On either side you have large-scale industrial hog and cattle farms. You park the car on the public street, and pull out a camera.

鈥淚 have every right to sit here and film and document what鈥檚 going on,鈥� Naerebout says. 鈥淲hen I鈥檓 on private property, like if I鈥檓 at your house, then there鈥檚 some restrictions.鈥�

Animal rights activists say ag gag amounts to nothing more than retribution. An activist films abuse, publishes the video online, and months later lawmakers debate bills meant to restrict that exact act, either by criminalizing lying on an application or mandating quick reporting of abuse. They say on undercover investigations, and on reporting animal abuse.

鈥淭he investigations have shifted to states that don鈥檛 have these laws,鈥� says Justin Marceau, a law professor at the University of Denver and the lead attorney for the animal rights groups that challenged the Idaho law. 鈥淭hat鈥檚 kind of the purpose. If you pass a law in Idaho, you hope that the investigations will happen in Colorado, and hurt their businesses instead of Idaho鈥檚.鈥�

"We all take for granted that the right to record for radio or TV is some speech type activity, but the Supreme Court has never had the occasion to say that."

Ag gag could eventually wind its way to the Supreme Court, Marceau says. These types of laws bring up thorny constitutional issues, like whether lying or surreptitious video recording is protected speech.

鈥淲e all take for granted that the right to record for radio or TV is some speech type activity, but the Supreme Court has never had the occasion to say that,鈥� Marceau says.

While animals rights groups are changing tactics in their battle against ag gag laws, the legislation itself is also undergoing an evolution. The most recent proposals have attempted to criminalize waiting longer than 24 or 48 hours to report animal abuse, or to press civil charges against activists who do undercover recording, as was the case in North Carolina. In the last four years, more than 30 ag gag bills have popped up in state legislatures across the country.

That evolution was on display in June 2015 in rural Morgan County, Colorado. Animal rights activists secretly kicking and stabbing dairy cattle at Cactus Acres Holsteins, tying the farm to its larger member organization, the co-op Dairy Farmers of America. Instead of waiting to issue a reaction, DFA representatives preempted the video release, themselves a couple of days before Mercy For Animals put up the edited footage on .

鈥淚t is disheartening that groups like Mercy For Animals, which claims to have animal care and wellness at heart, seek change through deceit and misconception, rather than working with the industry to proactively address their concerns,鈥� the DFA said in put out before the Mercy For Animals video was released.

鈥淲hen animal abuse is witnessed, it should be immediately reported, not recorded,鈥� the statement reads.

After the video was released and racked up thousands of views, the dairy farm鈥檚 owners underwent audits and were put on suspension by Leprino Foods, the cheese company they supply milk to. No one in the case, including the workers, owners nor the activist who shot the video, have been charged with a crime. If it had , for instance, the activist who shot it could face criminal charges.

鈥淓very single year I think it鈥檚 going to get worse,鈥� says Matthew Dominguez from the Humane Society. But now with legal precedent on his side, he says it鈥檒l be easier to convince lawmakers not to pass ag gag laws.

鈥淎nd after the ruling in Idaho, namely striking down the law as unconstitutional, I鈥檓 actually hopeful that the industry has learned their lesson,鈥� Dominguez says.

The Idaho case isn鈥檛 entirely finished. The state is waiting for Judge Winmill to issue his formal order striking down the law. When that happens Idaho Attorney General Lawrence Wasden could appeal.

As KUNC鈥檚 managing editor and reporter covering the Colorado River Basin, I dig into stories that show how water issues can both unite and divide communities throughout the Western U.S. I edit and produce feature stories for KUNC and a network of public media stations in Colorado, Utah, Wyoming, New Mexico, Arizona, California and Nevada.
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