Sometimes it’s disappointingly easy to tell when a state legislature is working for someone other than the voters. Or the persons to whom individual legislators feel accountable. Today’s example is the so-called “ag-gag” laws – statutes making it illegal to gather data on open space. Banned behaviors under these laws include performing water quality tests or taking photographs for the purpose of reporting to the government harmful farming practices, environmental degradation, or other environmental crimes. Laws of this kind have been adopted in Idaho, Wyoming, Iowa, Kansas, Missouri, Montana, North Dakota, and Utah.
The laws vary in detail. Wyoming’s are described by the Natural Resources Defense council as “Data Censorship Statutes.” They impose up to a year in prison, a $1,000 fine, and civil trespassing liability for people who enter open lands without permission (PDF) to collect “resource data.” So if WC stands on a public road in Wyoming and photographs an overgrazed field, or a herd of cattle crapping in a stream, its a violation of Wyoming law.
A legal challenge has been filed against Wyoming’s dubious law. You read it here first: Wyoming’s statute is doomed. It’s unconstitutional, a restriction on free speech and a violation of equal protection. Why? Because Idaho’s less restrictive ag-gag law has already been found to be unconstitutional by the U.S. District Court. Not that that outcome was much of a surprise.
Idaho’s ag-gag statute is comparatively limited in scope in comparison to, say, Wyoming’s. Idaho’s law made it a felony to engage in activities that “facilitate undercover investigations at agricultural facilities.” Under the law, a journalist or animal rights investigator could be convicted for failing to disclose his media or political affiliations when requesting a tour of an industrial feedlot, or applying for employment at a dairy farm. An employee could be convicted for videotaping animal abuse or life-threatening safety violations at an agricultural facility without first obtaining the owner’s permission. Any person who violated the law—whether an animal rights’ investigator, a journalist, or an employee—faced up to a year in jail. In addition, a journalist or whistleblower convicted under the law could be forced to pay publication damages pursuant to a restitution provision that requires payment for “twice” the “economic loss” a business suffers as a result of any exposé revealing animal abuse or unsafe working conditions.
Chief U.S. District Judge B. Lynn Winmill found the law unconstitutional, a violation of both the First Amendment and the Equal Protection Clause of the U.S. Constitution. It wasn’t even close. The Idaho Legislature hadn’t done itself any favors in the debate leading up to enactment. Some of the debate:
- One state senator compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”
- Another state senator compared undercover investigations to “terrorism, [which] has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food’s safety.” The same senator said, “This is the way you combat your enemies.”
- One state house member described undercover investigators as “extreme activists who want to contrive issues simply to bring in the donations.”
- Another state house member accused animal rights activists of taking the dairy industry hostage and seeking to persecute them in the court of public opinion.
Important tip to state legislators attempting to impose dubious restraints on protected speech: Don’t validate the arguments of those who oppose the law with intemperate comments. Or, as a lawyer would say, don’t create the evidence that will cause you to lose your lawsuit. Although in this case the laws were so egregiously unconstitutional that the additional evidence probably didn’t make a difference.
In a meticulously careful opinion, Judge Winmill found that the Idaho statute was an improper, content-based regulation of protected speech. Apparently Idaho is considering whether to appeal. Good luck with that.
Most land in the West is public land. It doesn’t belong to the folks with licenses to graze cattle on it. Outlawing photos of misuse of the public land by, say, overgrazing, or allowing you stock to craps in the creeks and lakes, is damaging the public’s land. Clearly, the Idaho Legislature isn’t interested in protecting the public. They’re focused on protecting their buddies who are breaking the law. The attitude explains much of the environmental degradation visible to even a casual observer throughout the intermountain west.
And suggests there isn’t gong to be a change anytime soon.