The Idaho law was challenged by People for the Ethical Treatment of Animals (PETA),The Animal Legal Defense Fund (ALDF), Idaho's ACLU, The Center for Food Safety, CounterPunch and journalist Will Potter of GreenistheNewRed.com.
It permitted the state to jail anyone who secretly records animal abuse during an undercover investigation. Six other states have ag-gag laws.
The law was passed after lobbying by Big Ag following an undercover investigation which showed the Bettencourt Dairy was abusing and sexually molesting cows. Below is the shocking video recorded by Mercy for Animals.
In 2013, O'Neill Sen. Tyson Larson (Dist. 40), Omaha Sen. Scott Laughtenbaugh (Dist. 18) and Ogallala Sen. Ken Schilz (Dist. 47) tried to make "unauthorized" recordings of animal cruelty, like the one above, a felony if done in factory farms in Nebraska. They failed.
Judge B. Lynn Winmill, of the United States District Court for the District of Idaho, found the law violated the First Amendment and rights to equal protection [PDF].Plaintiff Will Potter said:
“The state may not agree with the message certain groups seek to convey about Idaho’s agricultural production facilities, such as releasing secretly recorded videos of animal abuse to the Internet and calling for boycotts,” Winmill wrote. But, “it cannot deny such groups equal protection of the laws in their exercise of their right to free speech.”
The judge contended ALDF had “come forward with abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry.”
B. Lynn Winmill, Chief Judge of the U.S.District Court
for the District of Idaho
Beyond that, Winmill argued the First Amendment protected undercover investigations, including lies told by undercover investigators to uncover corruption.
“The lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest. This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect,” Winmill stated.
...The law “gives agricultural facility owners veto power, allowing owners to decide what can and cannot be recorded, effectively turning them into state-backed censors able to silence unfavorable speech about their facilities,” Winmill maintained. The law circumvents “long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.”
...The state made no credible argument explaining why “counterspeech” would not be able to protect companies or facilities from “interference by wrongful conduct.”
“If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.”
“The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence,” Winmill declared.
“The ruling sets the stage for ag-gag laws to be challenged in other states on similar grounds. The ALDF, PETA and others are currently fighting ag-gag in Utah,” Potter added. “The recent passage of North Carolina’s sweeping ag-gag laws, which is so broad it includes those who expose abuse at daycares and nursing homes, clearly cannot withstand scrutiny, either.”