Nine years ago, the Oregon Supreme Court threw out a 1971 law aiming at limiting advertising along highways that promoted any product not available on the premises. The idea was to allow, for example, a farmer to advertise at roadside his crops for sale, but disallow advertising for a motel or store located far away. The intent of the law was to limit the number of billboards without damaging local businesses.
The court killed the law because, it said, “The state may not enact restrictions that focus on the content of the speech, and this restriction does just that.”
That’s a central thread also running through the U.S. District Court decision last week throwing out the Idaho “ag-gag” law, which seeks to ban video recording of treatment of animals; the new offense was called “interference with agricultural production.” The recorders were compared to “terrorists” and “marauding invaders.” Critics said that the law made the penalty in Idaho higher for exposing evidence of animal abuse than for actually abusing animals.
District Judge B. Lynn Winmill looked at the law more broadly. He started by saying it “seeks to limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values.” The law, he suggests, might have barred Upton Sinclair from researching and writing his great novel about the meat-packing industry, The Jungle.
Winmill moved on to this: “A person, such as an employee, would not violate §18-7042 if he or she stood in an agricultural production facility and surreptitiously filmed the agricultural facility owner having a private conversation with his spouse. This same employee, however, could be prosecuted under §18-7042, and face up to a year in jail, and be liable for reputational harm to the owner, if the employee, without the owner’s consent, filmed his fellow workers repeatedly beating, kicking, and jumping on cows, or using a moving tractor to drag a cow on the floor by a chain attached to her neck. In other words, ... law enforcement authorities would need to view suspect video or audiotape to determine whether a particular recording violates the statute. The recording prohibition is therefore a classic example of a content-based restriction.”
There is more: “The recording prohibition gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities.”
What the “ag-gag” law seeks to do, at base, is stifle a participant's side of an argument – to say that one side cannot be expressed, but another can. Winmill: “The central problem with § 18-7042 is that it distinguishes between different types of speech, or conduct facilitating speech, based on content. As already discussed in the context of the First Amendment claim, an employee can make an unauthorized recording of an agricultural facility owner’s children visiting the facility without running afoul of § 18-7042, but the same employee could not make an unauthorized recording of workers abusing animals. Likewise, an undercover journalist who misrepresents his identity to secure a job at an agricultural production facility so he can publish a laudatory piece about the facility would not violate the statute. But an undercover journalist who misrepresents his identity to secure a job at the same facility seeking to expose illegal, inhumane, or unsafe behavior would violate the statute. The operative distinction is the message the employee or undercover journalist wishes to convey.”
Where else in human history have we seen governments allowing legal free access for one message, while banning its counterpoint? Legislators might do well to consider that when they return to session to take up this issue again.