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United States Court of Appeals for the Ninth Circuit
May 12, 2017, Argued and Submitted, Seattle, Washington; January 4, 2018, Filed
[*1189] McKEOWN, Circuit Judge:
Investigative journalism has long been a fixture in the American [**6] press, particularly with regard to food safety.2 In the early 1900s, Upton Sinclair highlighted conditions in the meat-packing industry in The Jungle, a novel based on his time working incognito in a packing plant.3 This case also originates in the agricultural sector—a secretly-filmed exposé of the operation of an Idaho dairy farm. By all accounts, the video was disturbing: dairy workers were shown dragging a cow across the ground by a chain attached to her neck; twisting cows' tails to inflict excruciating pain; and repeatedly beating, kicking, and jumping on cows to force them to move.4
After the film went live on the Internet, both the court of public opinion and the Idaho legislature responded, with the latter eventually enacting the Interference with Agricultural Production law. Idaho Code § 18-7042. That legislation—targeted at undercover investigation of agricultural operations—broadly criminalizes making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the [**7] facility without the owner's consent. Statutes of this genre—dubbed by some as Ag-Gag laws—have been passed in several western states.5
[*1190] This appeal highlights the tension between journalists' claimed First Amendment right to engage in undercover investigations and the state's effort to protect privacy and property rights in the agricultural industry. Idaho challenges the district court's determination that four subsections of the statute—§ 18-7042(1)(a)-(d)—are unconstitutional on First Amendment and Equal Protection grounds. The Animal League Defense Fund and various other animal rights organizations (collectively "ALDF") urge us to uphold the district court's injunction against enforcement of the statute, arguing that the law criminalizes whistleblower activity and undercover investigative reporting—a form of speech that has brought about important and widespread change to the food industry, an arena at the forefront of public interest.
Our analysis is framed by the Supreme Court's decision in United States v. Alvarez [**8] , which addressed the First Amendment and false speech. 567 U.S. 709, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012). ] We conclude that Idaho's criminalization of misrepresentations to enter a production facility, § 18-7042(1)(a), and ban on audio and video recordings of a production facility's operations, § 18-7042(1)(d), cover protected speech under the First Amendment and cannot survive constitutional scrutiny. In contrast, in accord with Alvarez, Idaho's criminalization of misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. § 18-7042(1)(b)-(c). Thus, we affirm in part and reverse in part the district court's entry of summary judgment in favor of ALDF and vacate in part its permanent injunction against enforcement of the statute.
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878 F.3d 1184 *; 2018 U.S. App. LEXIS 241 **; 46 Media L. Rep. 1181; 48 ELR 20005; 2018 WL 280905
ANIMAL LEGAL DEFENSE FUND; PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS INC; AMERICAN CIVIL LIBERTIES UNION OF IDAHO; CENTER FOR FOOD SAFETY; FARM SANCTUARY; RIVER'S WISH ANIMAL SANCTUARY; WESTERN WATERSHEDS PROJECT; SANDPOINT VEGETARIANS; IDAHO CONCERNED AREA RESIDENTS FOR THE ENVIRONMENT; IDAHO HISPANIC CAUCUS INSTITUTE FOR RESEARCH AND EDUCATION; COUNTERPUNCH; FARM FORWARD;WILL POTTER; JAMES MCWILLIAMS;MONTE HICKMAN; BLAIR KOCH; DANIEL HAUFF, Plaintiffs-Appellees, v. LAWRENCE G.WASDEN, in his official capacity as Attorney General of Idaho, Defendant-Appellant.
Subsequent History: Motion granted by Animal Legal Def. Fund v. Wasden, 2018 U.S. App. LEXIS 2734 (9th Cir. Idaho, Feb. 2, 2018)
Prior History: [**1] Appeal from the United States District Court for the District of Idaho. D.C. No. 1:14-cv-00104-BLW. B. Lynn Winmill, Chief District Judge, Presiding.
Animal Legal Def. Fund v. Otter, 300 F.R.D. 461, 2014 U.S. Dist. LEXIS 82363 (D. Idaho, June 16, 2014)
Disposition: AFFIRMED IN PART, REVERSED IN PART.
misrepresentation, records, trespass, agricultural production, agricultural, criminalizes, teenager, animal, legally cognizable, journalists, restaurant, damages, video, facilities, inflicts, regulation, plurality opinion, privacy, rights, dairy, food, agricultural industry, false statement, prohibits, district court, restitution, infringe, Stolen, farm, property right
Business & Corporate Compliance, Governments, Agriculture & Food, Distribution, Processing & Storage, Constitutional Law, Freedom of Speech, Free Press, General Overview, Fundamental Freedoms, Scope, Governments, Legislation, Severability, Equal Protection, Nature & Scope of Protection, Judicial Review, Standards of Review, Case or Controversy, Constitutionality of Legislation, Inferences & Presumptions