A complaint filed Monday in federal court in Idaho challenging the state's new "ag-gag" law is one of the most compelling I have read in a long time. As much a history lesson and muckraking manifesto as a series of factual allegations, the document asserts that Idaho's nascent effort to chill public oversight of its agricultural industry is both unconstitutional and unwise. Even if the plaintiffs lose, and I don't think they will, this initial pleading nobly advances their cause.
Idaho Governor C.L. "Butch" Otter signed the measure into law just three weeks ago. The statute creates the crime of "interference with agricultural production" by punishing anyone who makes an unauthorized "audio or video recordings" of what transpires inside food processing facilities in Idaho with up to one year in prison. It is designed, as its lengthy legislative record suggests, to help Big Ag prevent the public dissemination of images of animal abuse or unsafe conditions.
Images like those posted in April 2011 as part of an award-winning investigation into the state's dairy industry by the Boise Weekly. Or the video of farm workers in Idaho kicking and stomping on cows that the Boise Weekly posted in October 2012. It was this investigative work that caused one concerned lawmaker to lament recently not the cruelty, or unclean food, but the injustice of these farm operators being "tried and convicted in the press or on YouTube."
Yet these grim images, say the plaintiffs, are a vital part of "the public debate about animal welfare, food safety, environmental, and labor issues that arise on public and private lands." Indeed, the complaint alleges, the success of past undercover investigations—leading to food safety recalls, plant closures, and criminal convictions—are the very reason why Idaho's powerful farming lobby went to its legislature seeking this protection.
The plaintiffs are a collection of journalists, free-speech advocates, animal advocates, and others who argue that the new law violates the Supremacy Clause, the First Amendment, and (more creatively) the Fourteenth Amendment. The effect of the new law would be profound, they say, and profoundly contradictory to core American values: It creates more severe criminal sanctions for those who would expose animal cruelty than for those who commit such cruelty.
The complaint is good reading in part because of the outlandish quotations from supporters of the law, such as this one from Idaho state senator Jim Patrick, a sponsor of the bill: "[T]errorism has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food's safety. ... This is how you combat your enemies."
And there is this gem from a representative speaking in support of the Idaho Dairymen's Association: "The dairy industry decided they could no longer be held hostage by such threats. They could not allow fellow members of the industry to be persecuted in the court of public opinion."
What did these folks do to fend off this "persecution"? Why they commissioned a lawyer who, the complaint tells us, drafted the statute. (This makes this law somewhat unusual. Many of the current generation of ag-gag laws have been drafted or at least been coordinated by the American Legislative Exchange Council, the conservative group that has recently brought America both its"stand-your-ground" laws and voter suppression.)
But James Madison this legislation-drafting dairy lawyer isn't: The law is both too broad and too narrow. It is too broad because it purports to chill all sorts of speech and conduct that may otherwise be protected by law. And it is too narrow because it prohibits "audio or video recordings" without prohibiting still photography of the same images. And it's likely to get intense scrutiny from the federal courts because of the content-based nature of the motives behind it.
If nothing else, perhaps the lawsuit will give the law's stoutest defenders a chance to explain to the federal judiciary how public confidence in the state's agricultural industry will be buoyed by a law that keeps from public view the deplorable conduct the industry wants to keep hidden. Or how people who risk life and limb to obtain these videos are "terrorists" for seeking to inform the public about the safety of the food they eat or the milk they drink.
To get a broader perspective on the lawsuit, and the new law, I spoke Tuesday morning with Ken Paulson, a university professor (and dean) at Middle Tennessee State University who is a free speech/press expert and president of the vaunted First Amendment Center. He has followed statutes like these for years. Usually, he says, bills like Idaho's bill get vetoed by governors who view them both as unconstitutional and bad public policy for the ways in which they criminalize whistle-blowing.
COHEN: What do you make of this law and this complaint?
PAULSON: Well, it is clearly designed to head off YouTube videos because there is no prohibition against taking photographs. Is that an oversight?... Whatever the justification [for the law] is how do you possibly distinguish between capturing images on video and capturing them on a still camera? It would have the same level of intrusion, the same level of interference.
COHEN: Does that omission factor into the constitutional analysis going forward?
PAULSON: One of the things the Court would do is to assess whether there was a legitimate reason for this legislation beyond preventing the dissemination of information to the public and whatever ostensible motive there might be for preventing videotaping would apply to other media as well, you would think. At the very least it underscores that there is a specific form of communication that this bill is targeting. It isn't about trespass. It isn't about privacy. It isn't about proprietary methods. It's about limiting the public's understanding of what's going on these farms and preventing people from documenting it.
COHEN: What else strikes you about this?
PAULSON: There is a certain redundancy to all the ag-gag bills. They invariably try to limit investigative work by criminalizing things that already are criminal. You look on the face on this [law]. You violate the law if you enter a farm by "force, threat, misrepresentation or trespass." Each and every one of those is already prohibited by multiple statutes. If you were trying to eliminate coercion and fraud and trespass you would not need to pass this bill. If you were trying to limit the scrutiny of the agriculture industry you would need to pass this bill.
It is not only constitutionally suspect it's terrible public policy on the part of the legislature. Give me the very best argument for why this needs to be in place and then tell me why you wouldn't then pass similar legislation for day-care centers. Would anyone suggest that you would send someone to prison for documenting child abuse? Is there anyone who is going to run on that platform? Why in the world do we have a lesser standard for animal abuse? The answer is that animals are not people—but the broader point is that the health of animals affects the health of people.
I think an important point to be made is that the first amendment role that a press plays in keeping a watchdog on society is not limited to members of the press. It is important to remember that activist organizations, private citizens and others play similar valuable roles in democracy. It is wrong to suggest that they are intruders or troublemakers. We actually owe a debt to those who blow whistles.