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Quick decision unlikely on Ag Security Act motion

Sean Ellis

Capital Press

During oral arguments on the state's motion to dismiss a federal lawsuit against the Idaho Agricultural Security Act, plaintiffs argued it violates free speech while law supporters said it only regulates certain types of conduct. The judge told both parties not to expect a quick decision.

BOISE — A decision on the state’s motion to dismiss a federal lawsuit against the Idaho Agricultural Security Act could be at least a few weeks away.

After hearing oral arguments from both sides June 25, Chief U.S. District Judge B. Lynn Winmill said he would like to promise a decision within a week or two, but can’t.

“There is a lot to think about in this case,” he said about the lawsuit, which targets the recently passed Idaho law that makes it a crime to interfere with agricultural operations or secretly record them.

Winmill, who took the motion to dismiss under advisement, said the five sub-sections of the statute all raise their own separate issues.

“They are difficult and they are complex,” he said. “It will take a bit to get through them.”

The law makes it a crime to gain employment with an agricultural operation through misrepresentation or deception with the intent to cause harm to that operation. It also prohibits people from making an audio or video recording of the production facility’s operations without the owner’s consent.

The law’s opponents claim it violates First Amendment free speech rights, but the act’s supporters say it only pertains to certain types of conduct, such as trespassing on private property, and has nothing to do with free speech.

Deputy Attorney General Clay Smith, representing the Idaho attorney general, a defendant in the case, told Winmill during oral arguments, “The press is subject to ordinary laws, including the statute at issue here.

“The First Amendment simply does not protect activities which constitute trespass,” he said. “You can’t use the First Amendment to walk around that basic (private property right).”

Justin Marceau, a constitutional law professor from the University of Denver who is representing the plaintiffs, told Winmill the U.S. Supreme Court has ruled that the First Amendment protects certain types of conduct that is expressive.

“If I’m doing anything that has expressive value — certainly capturing images or sounds or video is expressive — then it’s speech-related,” he told the Capital Press later.

Marceau said that under the statute, “The ag industry is singled out for protection against whistle-blowing. We’re not suggesting that (agriculture) is not a critical industry. All we’re asking is that it be subject to the same whistle-blowing protections as other industries.”

In its motion to dismiss, the state said the plaintiff “attacks a statute that it wishes had passed. The statute actually passed has nothing to do with speech or employee whistle-blowing. It instead proscribes quite specific forms of conduct by any person….

“The law may interfere with (plaintiff’s) preferred business model, but, as a statute applicable to all individuals’ and organizations’ conduct, it violates neither the free speech nor the equal protection clause,” the motion states.


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