Animal welfare groups and others opposed to agricultural gag, or Ag-Gag, laws celebrated a victory in August as a federal district court struck down Idaho’s law, one of the more rigorous of the state Ag-Gag laws. Ag-Gag is the term given to legislation that targets undercover investigations of animal operations by preventing the filming and photographing of activity on farms without consent, among other things. In Animal Legal Defense Fund v. Otter, the court found Idaho’s law to be a violation of the First Amendment right to free speech as well as the Equal Protection Clause. This is the first significant decision striking down an Ag-Gag law and although the decision will directly impact only the Idaho law, the case will be persuasive across the country. The State of Idaho could appeal the decision, placing this issue before the Ninth Circuit Court of Appeals, the largest circuit court in the country and a court covering quite a diverse segment of the United States. The outcome of such an appeal would have an even broader direct and persuasive impact.
The Idaho law, Idaho Code §18-7042, was quickly passed by the legislature and signed by the Governor in 2014 in response to the release of a video of dairy farm workers apparently abusing cows. The video received national attention and caused the Idaho Dairymen’s Association to work with legislators to pass a stringent Ag-Gag law. The provisions were broad, making it unlawful for an individual to seek or secure a job with an agricultural facility or enter the facility in any manner with the purpose of recording or disclosing the activities within the facility. Because the law was intended to and would have restricted speech based on content and viewpoint, the court applied the strict scrutiny standard, requiring the State to identify a compelling state interest for the law and to demonstrate that the law was narrowly tailored to address that interest. The court found the evidence lacking on both. And the court found an Equal Protection violation, concluding that major agricultural operations are not entitled to more rigorous protections that any other businesses. As a result, the Idaho law was struck down.
From a public health law perspective, the case is interesting for two reasons. First, the impact of the decision could contribute to improved food safety. It’s clear that food safety is put at risk with aggressive Ag-Gag laws. The Network addressed this in a 2013 Issue Brief and accompanying blog post, noting that undercover investigations help police the food industry and promote compliance with food safety standards. In fact the largest meat recall in U.S. history resulted from an undercover video. As explained in the blog:
Whistle blowers play an important role in a food safety system that is chronically under resourced. Animal facility inspections are conducted by the USDA’s Food Safety Inspection Service (FSIS) and state food safety authorities. However, the USDA reported, during 2006-2007, that between 10 and 12 percent of inspector and veterinarian positions at poultry, beef and pork slaughterhouses nationwide were vacant. In some areas, the vacancies reached 22 percent. The sheer magnitude of processing capacity in the meat industry compounds the effect of these inspector vacancies; some slaughterhouses in the United States can process between 300 and 400 cows an hour, a rate double that of anywhere else in the world.
Second, often public health laws are subject to constitutional challenges like that raised against Idaho’s Ag-Gag law. It can be frustrating to have well-intended laws designed to protect the public health struck down. But public health advocates should be mindful that what we expect from the courts in challenging laws that may harm public health, we must expect also with respect to challenges to public health laws. That is a good reason to work with an effective attorney well-versed in public health and constitutional law when deciding whether and how to proceed with a public health measure that may impair speech.
This post was developed by Kathleen Hoke, Director at the Network for Public Health Law–Eastern Region at the University of Maryland Francis King Carey School of Law.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.