Federal Judge: Idaho Ag-Gag Law Violates First Amendment—Hooray for Upton Sinclair!

In a small victory for freedom of the press over corporate-ag fascism, a federal judge in Idaho has ruled that a 2014 law banning secret videotaping at agricultural facilities is unconstitutional:

“The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment,” U.S. District Judge B. Lynn Winmill stated in his Aug. 3 ruling.

Lawmakers in 2014 passed the statute — dubbed the ag-gag law — after Mercy for Animals, a Los Angeles-based animal-rights group, released a video showing workers at Bettencourt Dairies in Hansen stomping, beating, dragging and abusing the cows [Zach Kyle and Cynthia Sewell, “Federal Judge Strikes Down Idaho’s ‘Ag-Gag’ Law,” Idaho Statesman, 2015.08.03].

Judge Winmill’s ruling notes that Idaho legislators likened undercover journalism to terrorism. Judge Winmill says those legislators would have called Upton Sinclair a terrorist:

The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass’n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042 [link added; Judge B. Lynn Winmill, ruling, Animal Legal Defense Fund v Otter and Wasden, 2015.08.03].

Idaho contended that undercover journalists like those who revealed the abuses at the Bettencourt Dairies cause harm by lying to gain access to information, but Judge Winmill held that the harm comes not from the misrepresentations used to gain access to the ag facility but from publication of the factual information about the ag facility itself. Harm caused by publication of factual information does not negate the First Amendment protection of that speech. Judge Winmill says lies can serve the Constitution:

Indeed, the lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest. This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect [Winmill, 2015.08.03].

South Dakota has no such ag-gag law, but Iowa, North Dakota, Montana, Utah, Kansas, and Missouri do. Iowa passed the first ag-gag law in 2012, in response to Big Ag corporations crying about the exposure of their abusive practices. Judge Winmill’s ruling calls into question the constitutionality of ag-gag laws in Iowa and elsewhere and gives us legal ammo to shoot down any such proposals here in South Dakota.

8 Responses to Federal Judge: Idaho Ag-Gag Law Violates First Amendment—Hooray for Upton Sinclair!

  1. Let’s get it started. So it was OK for the Center for Medical Progress to lie its way into Planned Parenthood?

    Maybe all that Idaho and these other states need instead of a gag law is a law prohibiting recording of conversations without the knowledge or consent of both parties?

  2. mike from iowa

    Us iowans suck for sure.

  3. Deb Geelsdottir

    Rorschach, my thoughts exactly.

  4. It is a two way street, some of these people have edited their so called videos. In one case it was edited to show that the owner was present when the abuse supposedly took place when he was not even on the operation.

    After the video was released the publicity caused death threats, harassing phone calls and damage to property.

    How do you put the genie back in the bottle then?


  5. Well, gduffy, if someone creates a deceptive video, making demonstrably false claims with intent to harm, then that person can be prosecuted under existing defamation statutes, right? And that would apply to any such false and harmful speech in any setting, not just in an agricultural facility. One doesn’t an ag-gag law to go after such bad behavior.

    As for death threats and other externalities, there’s a fine line. Suppose my blog post about Lisa Furlong’s fake petitioners makes some people so mad that they call her with death threats (please, don’t!). We prosecute the people making the death threats. I’m not culpable for those death threats just because I posted truthful material that angers others. If what I publish deliberately incites violence (and, to be clear, I’m out to educate voters so they don’t sign the petition; I’m not trying to incite violence), then you have a case against me. But again, that situation isn’t specific to agriculture, payday lenders, or any other industry or content. Content-specificity was another issue in Winmill’s ruling: you can’t ban speech about specific topics, especially not factual reporting.

  6. mike from iowa

    Without video evidence of rodent infested feed and poultry buildings and the filth everywhere shown on tape,people would believe there was nothing going on inside cafos to cause disease and animal cruelty. Ag related videos don’t need to be edited,the truth is far worse then any editing could ever make it. People die from contaminated food. Contaminated eggs get shipped all over. So does processed meat.

    The crime is that people in labs that are paid to test products for contamination are not allowed to blow the whistle. Only the people who paid for the testing are allowed to disseminate that info-if they want to. They do not have to warn anyone their product is contaminated.

    If you wonder why food inspection is so lax,just look back at the dumbass dubya/wingnut administration to see when America’s food supply was declared war upon.

  7. Cory suppose you are correct on the defamation debate. By the time that individual paid legal expenses and if they happened to win two things would happen: 1. it would be old news and it might get some press but be buried in the bottom corner on the last page of the paper, 2. how would you get blood out of a turnip, in most cases the individual taking the video is acting on their right to express their views but I would imagine any wealth that they may have would be very meager to pay any judgment that might occur.

    Am I saying that all operations do things right? Absolutely not, but in their zeal to play in emotions of people things can go overboard. The question remains that if these things are going on shouldn’t they be turned into the proper authorities, oh wait they would not get a much publicity that way.

    Mike, what is your definition of a CAFO? Are ALL confinements like that. I had two small confinement building on my farm and there were no more rodents in their than if I went back to my old feed floor and straw filled barn. Again, I ask, do all operations do things right, I am sure not but I would be willing to bet the huge majority do but the brush gets painted very broadly with these video’s.

  8. But gduffy, even if the process is drawn out, even if the damage is done, you’ll have to settle for defamation. We can’t constitutionally go for prior review or blanket bans on free speech about specific industries, just to protect their profit margins. And are there a rash of cases where we have activists destroying businesses with defamatory (i.e., false) videos? The ag-gag rules all seem to pop up in response to factual documentation of real abuses for which businesses deserve bad publicity. It seems that’s just the standard ag businesses have to live with: you’re growing food for people, so you have to rise to a higher level of public scrutiny than the typical business. Don’t people have a right to know the conditions in which their food is raised? And doesn’t the free market operate on information?