We have on several occasions, most recently on February 5, 2020, blogged about so-called “ag gag” laws, statutes designed to prevent undercover investigations of agricultural producers. Since that post, the United States District Court for the Eastern District of Arkansas has dismissed plaintiffs’ challenge to the Arkansas statute for want of standing.

Unlike most ag-gag laws, the Arkansas statute is not limited to agricultural facilities. It applies to all commercial property. Nor does it impose criminal liability on alleged violators. Instead, it authorizes civil “damages” of up to $5,000 a day plus attorneys’ fees.

The statute makes it illegal to gain access to nonpublic areas of commercial facilities and engage in an act that exceeds the person’s authority. It defines such an act to include entering a nonpublic area for reasons other than honestly seeking a job or to do business with the proprietor. It then outlines five prohibited acts:

• Capturing data and using it in a manner that harms the proprietor;
• Recording images or sounds and using the recording in a manner that harms the proprietor;
• Placing an unattended camera or surveillance device on the property and using it for an unlawful purpose;
• Conspiring to steal some item belonging to the proprietor; and
• Substantially interfering with the ownership or possession of the property.

The fourth and fifth items on this list are perfectly permissible. The first three, however, clearly implicate the First Amendment.

The Animal Legal Defense Fund (ALDF) requested two agricultural facilities to waive their rights under the statute. When the facilities declined to do so, the ALDF sought declaratory and injunctive relief against them to prevent the infringement of their First Amendment rights.

Defendants filed a motion to dismiss for want of standing. The District Court held that plaintiffs had failed to allege an injury in fact that was both concrete and particularized and actual or imminent. The opinion acknowledged that the threat of either civil or criminal liability could chill speech and thus constitute an injury in fact. For that to happen, however, it is not sufficient that the plaintiff faces a subjective chill. Rather, there must be a claim of “specific present objective harm or a threat of specific future harm.”

The Court concluded that the complaint alleged neither. No defendant had threatened to enforce the statute. Nor did plaintiffs allege that either defendant had engaged in the kind of animal abuse that they would want to publicize, just that there was a possibility that they might. Finally, the Court thought that a threat of criminal charges posed a significantly greater chill than mere civil liability.

Plaintiffs have appealed to the Eighth Circuit. Their argument is straightforward:  they have conducted undercover investigations in the past; are prepared to do here; and have refrained from doing so out of fear of the draconian penalties imposed by the statute. That, they assert, is a classic case of chilling First Amendment rights and a clear basis for standing.

The key to standing is an objectively reasonable fear of prosecution. The brief cites several circuit court cases for the proposition that plaintiff has such a reasonable fear when the statute plainly outlaws proposed activity that plaintiff wants to perform and plaintiff refrains from doing so, at least absent compelling evidence to the contrary. This is just common sense, the brief asserts, for why would a legislature enact a statute that will not be enforced?

The brief relies on PETA v. Stein, an unpublished opinion of the Fourth Circuit about which we blogged on June 7, 2018. The Fourth Circuit reversed a District Court decision holding that plaintiffs lacked standing to challenge the North Carolina ag-gag law. Arkansas modeled its statute on the North Carolina act.

The brief also argues that the District Court misunderstood the law of standing by confusing First Amendment chilling claims with claims of potential future harm. A plaintiff must plead and prove that future harm is reasonably likely to occur in order to establish standing in a potential harm case. In a free speech chill case, however, the brief argues that self-censorship is itself a form of present injury.

Plaintiffs also argue that the civil nature of the penalties imposed can exert a chilling effect. As noted, the penalty can be as high as $5,000 a day, considerably more severe than many misdemeanors. For an extended investigation, these penalties could amount to hundreds of thousands of dollars. The brief cited a number of cases in which lesser daily penalties nonetheless gave the plaintiff standing.

The brief also argues that plaintiffs have standing because the statute chills their ability to acquire information about possible animal rights abuses. The First Amendment protects the right to gather information just as much as it does to publish it. The statute not only deters plaintiffs from undercover investigations; it deters others as well.

This is a strong brief, though it would have benefited from being one third shorter. As we have previously suggested, state legislatures would be more likely to accomplish their purposes if they limited statutes to prohibiting fraudulent entry for the purpose of causing tangible economic harm to agricultural facilities. The Ninth Circuit has sustained such a statute and it likely would have a substantial deterrent effect, at least on organizations that have called for an end to the production of meat.