The Law That Makes It Illegal to Report on Animal Cruelty

What makes Idaho's agricultural industry deserve special protection from journalists and activists?
Videos like this one filmed at New York's largest dairy farm have inspired so called "ag-gag" laws. (Mercy for Animals/YouTube)

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 investigationsleading to food safety recalls, plant closures, and criminal convictionsare 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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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