By Betsy Z. Russell, The Spokesman-Review, Spokane, Wash.
When Idaho lawmakers passed the state's "ag gag" law in 2014, criminalizing surreptitious videotaping of agricultural operations, they said they were targeting "agri-terrorism" and "extremists" who target "our farm families," particularly by publishing damaging videos online.
Now those statements are at issue in federal court, where the law is being challenged as an unconstitutional content-based restriction on free speech -- in part because it imposes hefty penalties on those who record at agricultural operations, but not at other types of businesses. The lawmakers' comments also are being used as evidence of a violation of the 14th Amendment's equal protection guarantee, showing that lawmakers were specifically targeting animal activists with the law.
U.S. District Judge Lynn Winmill, at a hearing in the case last week, compared the issue to the targeting of ACORN by conservative activists, who under false pretenses, videotaped members of the liberal community organizing group at their offices and used the video to undermine the group's credibility.
"The principles at stake here don't really have any politics," Winmill said. "They don't even have economics. What they have is just a question of constitutional law. ... It's just a question of what the First Amendment means and how it should be applied in the context of a law of this sort."
Rep. Gayle Batt, R- Wilder, the House sponsor of the law, was in the audience for the hearing, and bristled at the suggestion that misrepresenting oneself to get a farm job and then taking surreptitious video to publish could be protected under the Constitution.
"We're talking about motherhood and apple pie here," she said. "Regardless of what they argued, we're talking about private property rights and the need to tell the truth."
The law created a new crime of "interference with agricultural production," with a penalty of up to one year in jail and up to $5,000 in fines. Violators also must pay double damages in restitution. The new crime covers recording anything at an agricultural production operation without permission; intentionally damaging an ag operation, including crops, animals or equipment; misrepresenting oneself in seeking employment at an ag operation; and obtaining records of an ag operation by "force, threat, misrepresentation or trespass."
It was proposed after an animal rights group made covert video of severe abuse of cows at a southern Idaho dairy that led to criminal charges against the employees involved. Idaho's dairy industry decried the move and drafted and proposed Idaho's law.
Tony VanderHulst, chairman of the Idaho Dairymen's Association, told a House committee in February 2014, "This is about exposing the real agenda of these radical groups that are engaged in terrorism."
Idaho is one of at least seven states with so-called "ag gag" laws on the books, some dating back to the 1990s. Justin Marceau, a constitutional law professor at the University of Denver who is representing the Animal Legal Defense Fund and an array of other plaintiffs in the lawsuit for no charge, said Idaho's goes a step further than the other states' laws by making it a crime for even an employee who never misrepresented himself to take video at the workplace without permission.
" Idaho criminalizes the traditional whistleblower," Marceau said.
The state maintains the law doesn't restrict whistleblowers because it doesn't directly impose criminal penalties for publishing the recordings, just for making them in the first place.
"The statute was designed to protect private property and to protect agricultural operations, not to target journalists or whistleblowers," Deputy Idaho Attorney General Carl Withroe told the court,
But Winmill ruled in September, citing a long string of federal court decisions, that by specifically penalizing the making of recordings, the law also punishes the dissemination. Sen. Jim Patrick, R- Twin Falls, the Senate sponsor of the bill, told the Senate in 2014, "The problem we have here is you can be tried and convicted in the press or on YouTube, because everything's so available these days."
Sen. Steve Bair, R- Blackfoot, said the real problem is "agri-terrorism."
At last week's hearing, Marceau told the court, "Not all lies are created equal."
Marceau said the law imposes criminal penalties on someone who, for example, doesn't reveal on an application for an agricultural industry job that they actually have a degree from a top journalism school.
"They are not lies that interfere with the truth-seeking function of the First Amendment," he said. "They are lies that expose truth."
But an array of groups that have joined in the lawsuit or filed friend-of-the-court briefs argued that journalists and whistleblowers are specifically targeted by the law. They include the American Civil Liberties Union, the Reporters Committee for Freedom of the Press, People for the Ethical Treatment of Animals, Sandpoint Vegetarians, the Center for Constitutional Rights and a Kansas group called "Professors of the Law of Unconstitutional Animus."
Winmill told the parties he would like to issue a written ruling in the case within a week but is tied up in other trials for the next three weeks.
"It may take something longer than the norm to get a decision out, because of our schedule," he said.