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Early this year, a Ninth Circuit panel issued a split decision in an Idaho case that pits interests protected by the First Amendment against property rights and privacy interests. More specifically, as the panel majority noted, the 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.”
In ALDF v. Wasden, 878 F.3d 1184 (9th Cir. Jan. 4, 2018), the panel considered constitutional objections to a new Idaho statute that makes it a crime to engage in “interference with agricultural production.” A number of states with substantial agribusiness operations have enacted or considered enacting similar statutes, which some opponents call “ag-gag” laws.
The Idaho law was passed in 2014, after an animal rights group posted a “disturbing,” “secretly-filmed exposé of the operation of an Idaho dairy farm” on the Internet. Animal rights organizations filed suit in federal district court, challenging several provisions of the statute. After the court granted summary judgment to the plaintiffs, the Idaho attorney general appealed.
As relevant here, the Idaho statute defines the crime of “interference with agricultural production” to include (and thus to prohibit) four categories of knowing conduct:
(1) knowingly making misrepresentations to enter an “agricultural production facility”;
(2) knowingly making misrepresentations to obtain records of an agricultural production facility;
(3) knowingly making misrepresentations to obtain employment with an agricultural production facility, coupled with the intent to cause economic or other injury to the owners, the facility, and other persons and things; and
(4) knowingly entering an agricultural production facility that is not open to the public and making audio or video recordings of the facility’s operations without the owner’s consent and without any judicial or statutory authorization.
The panel unanimously upheld the second and third prohibitions, and unanimously struck down the fourth prohibition. But the panel divided 2-1 over whether the first prohibition (on knowingly making a misrepresentation to enter an agricultural production facility) is constitutional. The majority (Judge M. Margaret McKeown, joined by Judge Richard C. Tallman) held that the prohibition violates the First Amendment. Judge Carlos T. Bea, who dissented in part and concurred in part, would have upheld the prohibition. Among other things, he disagreed with the majority’s reading of United States v. Alvarez, 567 U.S 709 (2012), an important recent case in which the Supreme Court struck down the federal Stolen Valor Act, which criminalized false claims about the receipt of military decorations or medals.
Professor Eugene Volokh will discuss and evaluate the separate opinions in the case and their analyses of the statutory provisions at issue, noting possible implications for litigators as well as for legislators who may be considering similar legislative proposals.
Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
Moderator: Andrew R. Varcoe, Partner, Boyden Gray & Associates PLLC
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