Scofflaws, Bad Laws and Secrets: Ag-Gag Statutes

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.


2 thoughts on “Scofflaws, Bad Laws and Secrets: Ag-Gag Statutes

  1. I was concerned when I read that you left Alaska and moved to Idaho. Based on my experience, Moscow is a corrupt, discriminating, and disgusting place to live and jumped to the conclusion that all of Idaho is equally terrible. I attended law school in Moscow last year for about three weeks with full-funding provided by the VA vocational rehabilitation (VR&E) department.

    Immediately after law school started last August, a fellow 1L (I am 60 and Caucasian she is 40 and African-American) decided that I was too old and too stupid to be in law school and spread this information widely within the law school community. Then she told everybody (without supporting data) that as I am a service-disabled veteran, I have PTSD, “an arsenal of fully-automatic weapons,” and planned to shoot up the law school building and kill people. Then she filed false charges with the Moscow PD alleging I assaulted her in front of thirty fellow students just before the property class was to start. Although I demanded misdemeanor charges against Tyra P. Williams, the Moscow city attorney refused because it seemed unclear that she “knowingly” filed a false police report. Then she demanded that UI provide her with a security detail to monitor me at all times I was on campus. Then she demanded a new dorm room on campus because she claimed falsely that I knew where she lived. In fact her dorm problems developed after her Brazilian roommate reported that she was afraid of Williams. Then she left law school in January 2015 after telling some students that she had become pregnant; she claimed a relationship with a former NBA player with the Chicago Bulls. [For more information see Tyra P. Williams v. Fort Bend Independent School District (Houston, TX).]

    I tried to bring defamation charges against Williams, but Moscow-area attorneys replied: 1) I can’t represent you because my daughter works for UI in the public relations department and I can’t have my name on a lawsuit against her employer; 2) If you can’t handle law school, you should not be a lawyer, 3) my wife works for UI; and 4) I’m too busy and cannot refer you to anybody who will take your case. I filed a Honor Code complaint against Williams with the law school and UI, but neither were processed.

    I told the dean of students, Jeff Dodge, that the discrimination I experienced due to my military service status, had to stop! But he did nothing except move to get me kicked out of law school for entirely dubious and some unsubstantiated reasons (for example, he reasoned that since I did not disclose my lawsuit against the VA that this, therefore, indicated I behaved fraudulently and was therefore unsuitable for the practice of law … The fact is I have never filed a lawsuit against the VA!).

    Your post, WC, informs me that Idaho is probably as bad as I believed it was when I left Moscow and returned to Alaska. And now the VA has rescinded my approved VA vocational rehabilitation program. The VA reasons that I had a chance to fulfill my approved program and failed to do so.

    The matter was made worse when Williams sent me an email informing me that she was returning to UI law school last month … but there is no baby. Jeff Dodge and the dean he supervises believe that Williams will pass the Idaho bar and make a fine attorney. But her pre-professional do not reflect that this is the case.

    • WC allowed your comment, although it really isn’t on point to WC’s blog post. Some thoughts:

      (1) Don’t generalize your bad experiences with the University of Idaho Law School to the entire State of Idaho. WC has found most folks here to be friendly, helpful and interesting. He’s also been told that Boise is a nice town “surrounded by Idaho.” The obverse of Wasilla, “a bad town surrounded by Alaska.”

      (2) If you had a claim against U of I, why not look for a lawyer in Boise? There’s a vastly larger pool of talent, fewer conflicts of interest and likely a better selection of skills.

      (3) Why in the world would you now engage in email communication with the person you describe as giving you all that grief?

      WC isn’t looking o for responses on any of these points. If you do want to follow up, use WC’s email.


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