On June 22, 2017, September 15, 2017 and October 12, 2017, we blogged about so-called ag-gag laws, laws designed to prevent investigative journalism about producers of food. These laws raise serious First Amendment questions and many have been challenged in court.

The United States Court of Appeals for the Ninth Circuit is the latest to weigh in, resolving a challenge to Idaho’s ag-gag law. The statute created a new crime:  interference with agricultural production.  Such interference consists of:

• Entry into an agricultural facility by force, threat, misrepresentation or trespass.
• Acquisition of records of such a facility by force, threat, misrepresentation or trespass.
• Obtaining employment in such a facility by force, threat, misrepresentation or trespass, with intent to injure the facility’s operations.
• Making audio or video recordings of the operations of such a facility without consent.

The District Court enjoined enforcement of all four provisions. The Ninth Circuit affirmed in part and reversed in part.  The Court held that the ban on entering onto property by misrepresentation violated the First Amendment.  The Supreme Court has held that not all false speech is unprotected by the First Amendment.  Rather, it is only when such speech obtains material gain or inflicts harm that it is outside constitutional protection.  Here, gaining entry to property to film cruelty to animals does not in and of itself inflict harm or provide material gain.

The Court observed that plaintiffs had only challenged the misrepresentation element and did not challenge entry by force, threat or trespass. It suggested severing that one word to salvage the statute.

Judge Bea dissented from this part of the opinion. He would have found that trespass to property is a cognizable legal harm.  Under Idaho law, a consent to entry that is induced by misrepresentation is invalid.

The Court unanimously reached a different conclusion with respect to the ban on obtaining records by misrepresentation. Obtaining such records can cause material harm to the producer.  For example, people opposed to fur coats could cause considerable damage to mink breeders by destroying breeding records.  Other records might contain proprietary and confidential information, the loss of which would cause material injury.  Conversely, acquisition of such information could give the perpetrator material gain.  So this part of the statute passes muster because it serves a legitimate public purpose.

The Court also unanimously upheld the ban on obtaining employment by misrepresentation, with the intent of causing damage to an agricultural producer. An employee clearly obtains material gain by virtue of picking up his or her paycheck.  The Supreme Court clearly held that an offer of employment is valuable consideration, and hence supports the statute.

The Court unanimously agreed with the District Court that the ban on recording was unconstitutional. It is clear that the process of creating content protected by the First Amendment is also protected; otherwise, an offensive book would never be published.  It is equally clear that the recording statute was content-based, so it has to survive strict scrutiny to satisfy the First Amendment.

The Court held that the recording statute was both underinclusive and overinclusive. It was underinclusive because it banned recordings but not photographs; and because it was limited to operations as opposed to, for example, vineyards.  It was overinclusive because, to the extent the recordings invaded protected legal rights, the producers have a remedy.

Even absent the entry and recording elements, the Idaho ag-gag law is likely to substantially restrict investigative journalism. By far the most common means of gaining access for undercover reporting is a false job application.  That was how Upton Sinclair gained the knowledge he needed to write The Jungle.  It is not clear how an undercover journalist could otherwise gain access to a production facility for any substantial period of time.  And it seems reasonably clear that a desire to expose unsafe or inhumane practices would include the intent to injure those operations.

Several challenges to similar statute are percolating through the federal courts of appeals and it would not be surprising to see a successful certiorari petition to the Supreme Court of the United States.