Critics encouraged by ‘ag gag’ developments

Critics of so-called “ag gag” laws are encouraged by recent legal developments they believe bolster the argument that prohibiting secret audiovisual recordings is unconstitutional.

In one case, attorneys for Utah recently decided not to appeal a July ruling that held free speech rights were violated by a statute that criminalized gaining access under false pretenses to film farm operations.

In another case from Wyoming, the 10th U.S. Circuit Court of Appeals has decided that collecting “resource data” on public land is protected by the U.S. Constitution’s First Amendment.

On the political stage, the repeated failure of such laws to pass constitutional muster will probably deflate future support for similar bills, said Stewart Gollan, an attorney for the Animal Legal Defense Fund, which opposes “ag gag” statutes.

“I hope that will give legislators pause, given that they’re unlikely to withstand a court challenge,” Gollan said.

The Utah Office of the Attorney General refused to comment on its reasons for not appealing the decision, as did an attorney for the Animal Agriculture Alliance, an industry group that defended Utah’s statute in a “friend-of-the-court” brief.

While the Utah ruling is only binding within that state, the judge’s reasoning can be referenced elsewhere, said Gollan. “I think this decision will be persuasive to other courts.”

If the Utah ruling had been challenged and upheld by the 10th Circuit, it would have effectively been the law of the land in the six states under its jurisdiction.

“It may not be as strong in terms of precedential value, but we’re still happy with the decision,” Gollan said.

Also, the 10th Circuit’s decision in the Wyoming lawsuit largely relies on the same legal principles that brought down Utah’s “ag gag” law, he said.

Wyoming’s statute disallowed collecting resource data — including photographing wildlife and taking water samples — on public land if a person crossed private property to get there.

Environmental groups filed a complaint against the law, which was dismissed by a federal judge. The 10th Circuit has now reversed that decision, re-opening the case because the plaintiffs raised valid free speech issues.

The 10th Circuit noted that Wyoming already has laws against trespassing, but the data collection statute goes further by prohibiting the creation of speech, which is constitutionally protected.

Opponents of an “ag gag” law passed in Idaho also argue the Wyoming decision strengthens their case, which is currently under review before the 9th U.S. Circuit Court of Appeals after the statute was overturned by a federal judge in 2015.

The Animal Legal Defense Fund filed a court brief arguing the 10th Circuit agrees with its reasoning that interfering with speech creation runs afoul of the First Amendment.

Attorneys for Idaho also filed a brief claiming the Wyoming case isn’t directly relevant because it pertains to public lands rather than private property.

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