After secretly filmed footage of an Idaho dairy farm drew national attention and threats against the owners, the Idaho legislature passed a law criminalizing entry, records access and the creation of recordings of agricultural production operations. The Animal Legal Defense Fund, the American Civil Liberties Union and 15 other plaintiffs challenged the law, and a federal district court invalidated it in 2015. On appeal, the Ninth Circuit has held that while two of the law’s provisions are “staggeringly overbroad” restrictions on speech, the other two survive scrutiny and do not violate the First Amendment. Animal Legal Def. Fund v. Wasden, No. 15-35960 (9th Cir., entered January 4, 2018).

The panel held that Idaho cannot criminalize misrepresentations made to enter a production facility, partly because the language was overbroad and partly because it was targeted at investigative journalism. “Even assuming Idaho has a compelling interest in regulating property rights and protecting its farm industry, criminalizing access to property by misrepresentation is not ‘actually necessary’ to protect those rights,” the court stated. “If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way.” The law’s reach was “particularly worrisome,” the court noted, because Idaho’s definition of an “agricultural production facility” is broad enough to include places of business open to the public, such as “grocery stores, garden nurseries, restaurants that have an herb garden or grow their own produce, llama farms that produce wool for weaving, beekeepers, a chicken coop in the backyard, a field producing crops for ethanol and hardware stores, to name a few.” For example, the court stated, if a grocery store held a promotional food-court event for store identity cardholders and an individual used another person’s card to enter the event, the individual could be jailed or fined even with “no fraud, no gain and no valuable consideration.”

The court also held that the state could not ban the creation of audio or video recordings of a facility’s operations because the clause was “a classic example of a content-based restriction.” But the court reversed the lower court’s ruling on two remaining provisions that criminalized obtaining records by misrepresentation or obtaining employment with intent to cause economic or other injury, as both served “legitimate government interests.”

About The Author

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.

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