This is not a substitute for legal advice.
Recently, the federal district court in Utah found that Utah’s ag-gag law violated the First Amendment of the U.S. Constitution (Animal Legal Defense Fund, 2017). Before this, the federal district court in Idaho had found Idaho’s ag-gag law to violate the U.S. Constitution (Idaho is currently appealing that decision before the 9th Circuit Court of Appeals). Although these laws potentially violate the Constitution, producers still have options. In many cases, producers can work with producer groups to conduct audits on the operation to determine that current practices are up to date. Producers can make sure employees have the proper training and tools to conduct tasks. Always conduct background checks before hiring new employees, and utilizing employment contracts and employee handbooks can help limit many of the issues that ag-gag laws are designed to address.
Utah’s Ag-Gag Law
Many of you might be asking, “What is an ag-gag law?” Ag-gag laws are relatively new developments with state legislatures. The laws developed out of high profile undercover video investigations against livestock operations by animal welfare groups. Many of these investigations typically showed non-industry-approved practices, abuse of animals, etc. To combat these investigations that often target bad actors but paint the entire industry badly, states began to enact criminal laws that make it illegal to enter agricultural operations with the intent to film the operation without the owner’s approval, gaining employment through false pretenses, and not timely reporting alleged abused to the proper law enforcement agency.
In 2012, Utah adopted a criminal law making it illegal for a person to gain access to an agricultural operation by pretenses (or lying), records the operations either without the owners’ consent, prohibited from recording and does it anyway, or records while an employee of the operation (Utah Code Ann. § 76-6-112 (West 2016)). In 2013, one of the plaintiffs in the case was charged with violating the law by recording an animal operation from the public road (Utah dismissed the charges eventually). The plaintiffs then challenged the constitutionality of Utah’s law.
District Court Decision
In this case, the court is deciding a motion for summary judgment, meaning the court is deciding the case without a trial and just looking at what is filed with the court so far. Based on the record and the argument of the parties, the court sided with the plaintiffs finding Utah’s law restricts free speech.
The First Amendment to the U.S. Constitution limits States from enacting laws that limit free speech. But there is an exception to this restriction some speech is not protected such as defamation, obscenity, true threats, and child pornography. First, the court has to determine if the First Amendment protects the speech in question here.
In looking at the lying provision, a recent Supreme Court ruling concluded that lies fall outside First Amendment protection when the lies prohibited by the law cause a legally cognizable harm. The First Amendment protects lies that do not cause a legally cognizable harm. The State argued that lying to gain access a facility can cause harm to animals and employees but the court found that many lies told to gain access would not harm anyone.
Utah also argued that the lies to gain access make the liar a trespasser and trespassing is a legally cognizable harm. The court disagrees with this argument because not all lies to gain access will be a trespass. To be considered trespass, the lie must interfere with an owner’s use and enjoyment of the property. For example, if a competitor pretends to be your customer, gets into your business, and steals business secrets would be a trespasser. Here the competitor lies to gain access (pretends to be a customer) and interferes with your use and enjoyment of the property (steals business secrets), the competitor would be a trespasser.
The court applies the ag-gag law to this standard, Utah’s law would be exempt from the First Amendment if a person gains access to the operation through a lie and interfere with ownership or possession of the operation. But if the lie to gain access does not interfere with ownership or the possession of the operation, then the lie is protected under the First Amendment. Looking at similar incidents involving media using undercover videos to record businesses, the court disagrees with Utah that lying to gain access to the operations can cause a trespass and the lies covered by the ag-gag law would are protected under the First Amendment.
Utah’s next argument is that lying to get a job is not protected under the First Amendment. The problem with this argument is that Utah’s ag-gag law does not make lying to gain employment a crime, it only makes lying to obtain access a crime. Because the ag-gag law does more than making lying to obtain a job a crime, the lie is still protected under the First Amendment.
The court also rejects arguments that were making recordings are not protected by the First Amendment. The court highlights that recordings are protected under the First Amendment, and it would seem odd not to offer First Amendment protection to the act of making the recordings. To the court, a government could limit speech if the government could make making a recording illegal but not the recording itself.
Finally, it does not matter if the speech itself (the lying or making the recording) takes
place on private property. The First Amendment does not apply to speech that takes place on private property. For example, if you own a shopping center, you are under no requirement to allow people to protest on the property. The court agrees with the state that private property owners can exclude people from the property who wish to speak, but Utah’s ag-gag law has another problem. The law still allows Utah to prosecute the person based on the speech on private property. This part of the law is what the First Amendment protects against.
The simple reason is, courts seem to have a hard time accepting these laws as constitutional and not violating the First Amendment. But producers still have options to protect their operations. Livestock operations can check references and conduct background checks to determine if a job candidate is who he/she says he/she is. Operations can also use employment contracts that make all images taken on the farm the property of the farm or just ban the use of recording the farm by employees. Operations can make sure employees have all the necessary training to handle livestock, tools needed to handle livestock, and are presented with opportunities to learn better skills to handle livestock to prevent being the subject of an undercover video operation. Operations can also work with producer groups to see if the groups conduct audits to verify handling techniques. These are just some examples, but the operation being proactive to protect itself will do more good than many ag-gag laws could do in protecting the operation. Take a moment to consider what you can be doing in your operation to protect it.
Animal Legal Defense Fund v. Herbert, No. 2:13-cv-00679-RJS (D. Utah July 7, 2017).
Utah Code Ann. § 76-6-112 (West 2016).