With a second so-called “ag gag” law getting struck down, the fate of prohibitions against secret farm recordings now rests with federal appellate courts, experts say.
Two neighboring states, Idaho and Utah, enacted laws barring people from gaining entry to farms under false pretenses to film agricultural operations.
The statutes were prompted by broadly publicized undercover videos that depicted animal abuse at livestock facilities.
A federal judge recently found Utah’s statute to unconstitutionally violate free speech rights, largely on the same grounds that Idaho’s law was earlier invalidated.
The ruling in Idaho is already being reviewed by the 9th U.S. Circuit Court of Appeals, while the Utah opinion is expected to be challenged before the 10th U.S. Circuit Court of Appeals. Together, the federal appellate courts have jurisdiction over 15 Western states.
However, the 9th Circuit is widely viewed as more liberal than the 10th Circuit, potentially setting up a “circuit split” on the laws that would invite U.S. Supreme Court review, experts say.
Despite its conservative reputation, the 10th Circuit is likely to uphold U.S. District Judge Robert Shelby’s recent ruling against Utah’s statute, said Stewart Gollan, attorney for the Animal Legal Defense Fund, which sued to oppose the laws.
False statements, such as those used to obtain farm jobs, would likely be protected under a Supreme Court precedent that threw out a law criminalizing lies about military service, he said.
“The Supreme Court made very clear that even untrue speech can, in many cases, enjoy First Amendment protection,” said Gollan.
In the Utah ruling, the judge found that many potential “false pretenses” criminalized by the state’s law would be too innocuous to cause “legally cognizable harm,” so they remain protected as free speech.
Utah’s statute “criminalizes a broad swath of lies that result in no harm at all,” such as job applicant claiming “that he is a born-again Christian, that he is married with kids, that he is a fan of the local sports team,” the judge said.
John Dillard, an attorney for the Animal Agriculture Alliance, said it’s tough to predict how Utah’s statute will be interpreted by the 10th Circuit.
“It’s a case of first impression,” said Dillard, who submitted a court brief defending Utah’s law.
Even if the 10th Circuit agrees the Utah statute is unconstitutional, the ruling would hopefully shed some light on the type of activities that can be lawfully prohibited, he said.
According to the judge’s ruling, Utah’s statute unlawfully interfered with the creation of free speech, similarly to a statute that taxes ink and paper to suppress the views of a newspaper.
The right to broadcast a video would “mean very little” if the government could “circumvent that right by regulating with impunity the making of the recording instead,” the judge said.
Since Utah’s law targeted actions — making false statements and secret recordings — not actual speech, lawmakers need to understand the “right reasons” for enacting laws that affect hiring, said Dillard.
“If we’re going to consider actions speech, we’ll need some clearer parameters,” he said.