First Amendment Protection for Undercover Animal Cruelty Exposes

A federal appeals court struck down Idaho’s law criminalizing undercover reporting on conditions in a dairy and other agricultural facilities as a First Amendment violation.

The 9th U.S. Circuit Court of Appeals affirmed a lower court Thursday the invalidated a law making it crime to make audio and video recording of agricultural activity, pointing to the long tradition of investigative journalism with regard to food safety.

Ina 2-1 vote, the appeals court cited the 1906 book by Upton Sinclair, “The Jungle,” which highlighted filthy and unsafe conditions in the meat-packing industry based on his time working incognito in a packing plant.

The current case began in 2012 when an animal rights activist secretly filmed operation of an Idaho dairy farm, that included dairy workers dragging a cow by a chain around the neck and repeatedly beating, kicking and jumping on cows for force them to move.

When animal rights group, Mercy for Animals, released the video publicly on the Internet, the Idaho legislature enacted a law that targeted undercover investigation of agriculture and broadly criminalized lying to get access to production facilities as well as making audio and video recordings.

“We conclude that Idaho’s criminalization of misrepresentations to enter a production facility, and ban on audio and video recordings of a production facility’s operation, cover protected speech under the First Amendment and cannot survive constitutional scrutiny,” wrote Judge Margaret McKeown. She was joined by Judge Richard Tallman.

The Animal Legal Defense Fund and other groups sued to challenge the law arguing it criminalizes whistleblowing.

The appeals court did uphold a segment of the law that forbids misrepresentations to obtain records or secure a job as not protected by either free speech or the equal protection clause.

The majority said that while it was sensitive to journalists’ constitutional right to investigate and publish exposes on the agriculture industry, the First Amendment right to gather news does not exempt reporters from laws of general applicability.

Judge Carlos Bea dissented. He said the right of the property owner to exclude all others from the property should have taken precedence.

Case: Animal Legal Defense Fund v. Wasden, No. 15-35960

 

 

 

 

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