An Idaho federal court has invalidated a state law that criminalized
undercover investigations at agricultural manufacturing plants, finding
that the law criminalized speech in violation of the First Amendment.
Animal Legal Def. Fund v. Otter, No. 14-0104 (D. Idaho, order entered
August 3, 2015). The 2014 Idaho statute passed after an animal-rights
organization publicized a video recorded during an undercover
investigation at a dairy.

The statute criminalized “interference with agricultural production,”
specifically interference by non-employees who obtain access to a facility
by trespass or misrepresentation—or employees who obtain employment
by misrepresentation—who then create audio or video recordings without
the facility owner’s consent or intentionally cause physical damage to
facility operations. The Animal Legal Defense Fund challenged the law on
First Amendment and Equal Protection grounds soon after it took effect.

The court first detailed the legislative history of the bill, noting the
intentions of the bill’s drafters—including the “desire to shield Idaho
dairymen and other farmers from undercover investigators and
whistleblowers who expose the agricultural industry to ‘the court of
public opinion.’” Under the statute, meat-processing muckraker and
author of The Jungle, Upton Sinclair, could be subject to criminal
prosecution, the court noted. The state argued that the statute “is not
designed to suppress speech critical of certain agricultural operations
but instead is intended to protect private property and the privacy of
agricultural facility owners. But, as the story of Upton Sinclair illustrates,
an agricultural facility’s operations that affect food and worker safety
are not exclusively a private matter. Food and worker safety are matters
of public concern,” the court found. “Moreover, laws against trespass,
fraud, theft, and defamation already exist. These types of laws serve the
property and privacy interests the State professes to protect through the
passage of [the statute], but without infringing on free speech rights.”


Issue 574

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.