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Careful parsing in the ag-gag decision


Idaho’s Interference with Agricultural Production law – aka “ag-gag” – was signed into law in 2014 in response to an investigative report (by a group called Mercy for Animals) at a dairy, which involved secret filming there.

There’s been a lot of talk about it since, some of it semi-apocalyptic on both sides. What it really called for was a careful parsing of its provisions, some of which were sensible and others . . . not. What’s needed here, in the legislative sphere, a little more cautious drafting.

(I’d say the same about a number of federal laws. The Patriot Act is one that comes to mind.)

The law had four basic provisions on banned activity, if a person:

(a) Is not employed by an agricultural production facility and enters an agricultural facility by force, threat, misrepresentation or trespass;
(b) Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) Obtains employment with an agricultural facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers; [or]
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner’s express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility’s operations.

This is a mixed bag. Some of it would not be challenged by almost anyone: Certainly, for example, no one should be able to enter an agricultural property – or your home, for that matter – or obtain records by force or threat.

When last week the 9th Circuit Court of Appeals reviewed the law (in Animal Legal Defense Fund v. Wasden), it upheld some parts of it. But it tossed other parts of it which clearly were intended to block reporting – to block, in other words, public awareness of what was happening in these operations.

This review of the legislative history in the court’s decision was noteworthy:

Legislators discussed the bill as protecting against two types of perceived harm to agricultural producers. First, lawmakers expressed concern about physical and operational damage caused by animal rights activists who gain access to agricultural production facilities. For example, some legislators discussed concerns about farm security and privacy. Others voiced concerns about the intentional destruction of crops, breeding records, and farm structures.

Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.”

The first set of concerns generally sounds fair and reasonable. The second? Sorry, but in this society we need to know about matters of public importance, and the conduct of these businesses certainly is that.

The court also pointed out just how broad these provisions are. When ag-gag has been discussed the context usually has been reporting on CAFOs (animal feeding facilities), but it actually runs much more broadly: “the subsection reaches misrepresentations not only in the context of a large-scale dairy facility or cattle feedlot, but also grocery stores, garden nurseries, restaurants that have an herb garden or grow their own produce, llama farms that produce wool for weaving, beekeepers, a chicken coop in the backyard, a field producing crops for ethanol, and hardware stores, to name a few.”

If that doesn’t grab you, consider this scenario the court set out: “Imagine a situation in which an Albertsons grocery store opens early to the first one hundred affinity cardholders to visit the new, spectacular food court. Given the expansive definition of “agricultural production,” the Albertsons store would be covered under the statute as a facility where agricultural products are “process[ed] and package[ed] . . . into food.” An enterprising person with no Albertsons card, but representing otherwise, or even someone using a friend’s Albertsons card, falls prey to the statute simply because he wants to see the food-court extravaganza. Under subsection (a), our protagonist would be guilty of a misdemeanor and could be punished by up to one year in prison, a fine not in excess of $5,000, or both—not to mention a potential restitution award.”

Writing the laws is serious business. The court’s review and partial tossing of Idaho’s ag-gag makes that clear. Here’s hoping the lesson sinks in as lawmakers in the Gem State, and other places, return to work to write new ones.

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