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.