Anatomy of a brief: Reporters Committee supports challenges to "ag-gag" statutes

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Michael Lambert

In June, the Reporters Committee filed friend-of-the-court briefs in two federal courts asserting a similar argument — laws criminalizing the recording of agricultural production facilities, known as “ag-gag” statutes, are unconstitutional under the First Amendment.

Numerous states have enacted “ag-gag” laws in recent years that punish those who make audio or video recordings at agricultural facilities without the consent of the facility owner. Although the particular language of each statute varies from state-to-state, the laws effectively ban undercover reporting on the agricultural industry and gag speech critical of agricultural practices. In turn, the public’s ability to learn about potentially dangerous and unethical conditions at agricultural facilities is stifled.

Idaho enacted an “ag-gag” law in 2014 that created the misdemeanor crime of “interference with agricultural production” to knowingly make an audio or video recording of an agricultural production facility’s operation without the owner’s express consent. After a number of organizations, including the Animal Legal Defense Fund (ALDF), challenged the law, the U.S. District Court for the District of Idaho struck down Idaho’s “ag-gag” law as unconstitutional in 2015 under the First and Fourteenth Amendments, becoming the first court to invalidate an “ag-gag” law. This summer, the Reporters Committee and 22 media organizations filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in Animal Legal Defense Fund v. Wasden in support of the plaintiffs seeking to uphold the trial court’s decision.

Similarly, Utah passed its own “ag-gag” law in 2012 that criminalized “agricultural operation interference,” defined as knowingly or intentionally recording an image or sound from an agricultural operation without consent from the owner. Soon after the law’s enactment, Utah prosecutors charged Amy Meyer, a Utah activist, with violating the law after she attempted to document slaughterhouse abuses from public property. Meyer was the first person in the country prosecuted under an “ag-gag” statute. Although the government ultimately dropped the charges against Meyer, she joined ALDF and other organizations in challenging the law in Utah federal court. In June, the Reporters Committee and 17 media organizations filed an amicus brief with the U.S. District Court for the District of Utah in Animal Legal Defense Fund v. Herbert in support of ALDF and other plaintiffs’ motion for summary judgment, which asks the court to declare the law unconstitutional.

In both cases, the Reporters Committee argued that the “ag-gag” laws are unconstitutional under the First Amendment because they deter future investigations into the agriculture industry, suppress speech on a matter of public concern in which the public has a right to know, and are content-based restrictions on speech that do not survive strict scrutiny.

Previous investigations by journalists, organizations, and whistleblowers have successfully unveiled injustices in agricultural production practices. For example, Upton Sinclair’s famous exposé on Chicago’s slaughterhouses, The Jungle, is credited with aiding passage of the Pure Food and Drug Act and the Meat Inspection Act. The Reporters Committee argued in its brief that “ag-gag” laws prevent future enterprise journalistic endeavors that seek to report on health and safety concerns in agriculture, topics of the utmost public interest. By criminalizing audio and video recordings at agriculture facilities, the “ag-gag” statutes weaken food safety while stifling free speech.

Journalistic scrutiny of agricultural production facilities can only lead to better food safety. Silencing the speech of journalists and the whistleblowers who act as their sources with the threat of criminal conviction leaves a federal inspection system fraught with its own problems as the lone watchdog over the food the public consumes. [The] statute should be struck down because the government must not discourage journalists from providing the same searching examination of the food industry that has resulted in safer food to the nation for over 100 years.

The Reporters Committee stressed that the First Amendment protects the creation of audio and video recordings. Accordingly, restricting journalists and their sources from scrutinizing the agricultural industry through recordings restricts speech of public concern and speech that the public has a right to receive from entering the marketplace of ideas.

[The “ag-gag” statute] squarely suppresses speech relating to topics of universal importance — the safety of employees and the public food supply, the treatment of animals, and the impact of the agriculture industry on the environment. . . . [The states'] attempt to gag these areas of substantial public interest violates the First Amendment’s commitment to encouraging speech on matters of public concern.

. . .

The U.S. Supreme Court has found that the public has a heightened and independent First Amendment right to receive information, independent of the speech interests of journalists and other advocates. “[W]here a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).

The Reporters Committee also argued that “ag-gag” statutes are content-based restrictions that are not narrowly tailored to serve compelling state interests. Thus, the laws are unconstitutional under the First Amendment.

Content-based restrictions on speech are presumptively unconstitutional under the First Amendment. City of Renton v. Playtime Theatres, 475 U.S. 41, 47 (1986). Governments are prohibited from restricting speech based on its content because content-based laws threaten to “manipulate the public debate through coercion rather than persuasion,” Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 641 (1994), and permit governments to “drive certain ideas or viewpoints from the marketplace.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1982). Content-based laws are only constitutional if they survive strict scrutiny, which requires the laws to be narrowly tailored to serve compelling state interests. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

The U.S. Supreme Court, in Reed, defined content-based regulations as “those that target speech based on its communicative content” and those that define regulated speech “by particular subject matter” or “by its function or purpose.” Id. at 2227. Using this definition, the Reporters Committee wrote that the Utah and Idaho “ag-gag” statutes were content-based restrictions because they both regulate speech “by particular subject matter” — “conduct of an agricultural production facility’s operations” in Idaho and “agriculture operations” in Utah.

Further, both states asserted protecting private property rights and preventing trespass and fraud as justifications for enacting the laws. However, neither of these interests are compelling. Privacy rights of agriculture facilities are already compromised by federal government inspectors who consistently visit the premises, observe operations, and test meat products. Trespass and fraud are already addressed by current trespass and fraud laws sufficient to account for these concerns.

Regardless of the state interests asserted, both laws are not narrowly tailored to be the least restrictive means of achieving those interests because they both criminalize a number of constitutionally protected newsgathering activities.

Ultimately, the Reporters Committee concluded that the laws are unconstitutional under the First Amendment as content-based restrictions not narrowly tailored to serve a compelling state interest.