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Court Cuts Back Idaho's 'Ag Gag' Law

By William Vogeler, Esq. | Last updated on

Torturing cows was bad enough, but then Idaho tortured the First Amendment.

That's a short reading of Animal Legal Defense Fund v. Wasden. Animal rights activists sued to invalidate a law against surreptitious recording enacted after videos exposed mistreatment of the animals at a dairy farm.

The U.S. Ninth Circuit Court of Appeals, in a divided opinion, said the statute was "staggeringly overbroad." But that was nothing compared to the shock from the videos.

Secret Recording

The controversy started in 2012, when an animal rights activist went undercover to get a job at an Idaho dairy farm and secretly filmed animal abuse there. The videos showed workers dragging a cow across the ground by a chain around its neck; twisting cows' tails to inflict pain; and repeatedly beating, kicking, and jumping on cows to make them move.

Mercy for Animals, an animal rights group, publicly released portions of the video on the internet. It stirred widespread reactions, including the creation of a new law.

Idaho Code Section 18-7042, also known as the "ag gag law," criminalized interference with agricultural production. It targeted the very actions of the animal activist, including "audio or video recordings of the conduct of an agricultural production facility's operations."

The Animal Legal Defense Fund sued, alleging the law sought to outlaw whistleblowing by employees, investigative journalism, and other undercover investigations. A trial judge agreed and permanently enjoined enforcement of the law.


On appeal, the Ninth Circuit affirmed and reversed in part. The panel said most of the regulations violated the First Amendment; however, it upheld a section that punished "obtaining employment by misrepresentation with the intent to cause economic or other injury."

In a dissenting opinion, Judge Carlos Bea said property owners should be able to "exclude anyone from entry, at any time, and for any reason at all or indeed for no reason." But the majority said it was unconstitutional to punish an innocent entry or misrepresentation to gain entry to agricultural property under the statute.

However, the appeals court also said the "ag gag" could be used to punish misrepresentation to obtain a company's records with the goal of causing harm.

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