A federal appeals court on Thursday declared unconstitutional Idaho’s bans on shooting secret videos and lying to enter factory farms to expose animal abuse, but revived other parts of the state’s law to curb undercover probes into the practice.
The decision by the 9th U.S. Circuit Court of Appeals in Seattle reversed part of a lower court ruling that Idaho’s 2014 “ag-gag” law was unconstitutional on free speech grounds.
Writing for a 2-1 majority, Circuit Judge Margaret McKeown called the video ban a “classic example of a content-based restriction that cannot survive strict scrutiny.”
She also said the ban on making misrepresentations to enter facilities was void because it could criminalize innocent behavior, suffered from “staggering” overbreadth, and was largely “targeted at speech and investigative journalists.”
But the appeals court said Idaho could criminalize making misrepresentations to obtain records of agricultural facilities, and to obtain employment there with the intent of causing economic harm.
Idaho’s Republican governor, C.L. “Butch” Otter, signed the ag-gag law in February 2014.
The law was passed after activists had released a video showing workers at a dairy beating and abusing cows, including when a tractor was used to drag a cow chained at the neck.
Justin Marceau, a lawyer representing the Animal Legal Defense Fund in the case, called the appeals court decision a “mixed bag” for animal rights advocates.
“It is a landmark decision because it upholds the right to record on factory farms and other private property,” he said in an interview. “Until today no federal circuit court had recognized (that right) outside the public sphere.”
Marceau also said the ALDF will review its options on the parts of the law that were revived.
The office of Idaho Attorney General Lawrence Wasden, which defended the law, is reviewing the decision, spokesman Scott Graf said.
Agricultural groups have pressed U.S. states to enact ag-gag laws to stop activists and journalists from secretly probing animal abuse at farms, dairies, feedlots and slaughterhouses.
Eleven states had such laws as of October 2017, though four faced legal challenges, according to the American Society for the Prevention of Cruelty to Animals.
In Thursday’s decision, McKeown also rejected the argument that Idaho’s ban on obtaining employment through misrepresentations was too broad because it could cover people who merely inflate their credentials, saying they lacked the needed intent to injure.
The dissenting judge, Carlos Bea, would have upheld more of the Idaho law.
The case is Animal Legal Defense Fund et al v Wasden, 9th U.S. Circuit Court of Appeals, No. 15-35960.