Last week the 9th Circuit Court of Appeals handed down a decision on Idaho’s so-called “ag gag” law that restricts certain activities around agricultural production facilities.

Animal Legal Defense Fund, et al. v. Wasden was based upon a 2014 Idaho statute that criminalized the following:

(a) Is not employed by an agricultural production facility and enters an agricultural facility by force, threat, misrepresentation or trespass;

(b) Obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

(c) Obtains employment with an agricultural facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility’s operations, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers; [or]

(d) Enters an agricultural production facility that is not open to the public and, without the facility owner’s express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility’s operations.

The motivation for the law was a 2012 expose by Mercy for Animals.  According to the Associated Press story at the time, the group released a video “showing workers at Bettencourt Dairy beating, stomping and sexually abusing cows in 2012.”  Roughly 10 other states have enacted similar laws.

Idaho Federal Judge Lynn B. Winmill overturned these provisions of the law in August of 2015 on the grounds that they violated the First Amendment and Equal Protection clause of the 14th Amendment, writing:

“The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

An appeal was taken to the 9th Circuit with respect to the grounds rooted in “misrepresentation”. The three judge panel found that the statute’s provisions barring entry to an agricultural production facility and the recording provision were invalid infringements on the First Amendment, stating: “that the purpose of the statute was, in large part, targeted at speech and investigative journalists.”

The Court also expressed concern over the reach of the law noting that the “agricultural production facility” and “agricultural production” included “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.”

The 9th Circuit did uphold the provisions covering obtaining employment or records by false pretenses. The Court relied on a previous decision that found financial motive or harm did create a basis to draw the line at permissible activities.

The appellate panel also made repeated references to the Idaho legislative history to establish that the measure specifically targeted investigative reporting. This section of the decision should give Idaho legislators pause as they begin their session:

Lawmakers also discussed damage caused by investigative reporting: “One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there’s videos, well, we’re being tried and persecuted and prosecuted in the press.” Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as “terrorists” who “use media and sensationalism to attempt to steal the integrity of the producer and their reputation.” One legislator stated that the dairy industry’s reason behind the legislation was “[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion.” Another described these videos as used to “publicly crucify a company” and “as a blackmail tool.” Finally, one legislator indicated that if the video had not been published, she did not “think this bill would ever have surfaced.”

Idaho legislators might want to carefully consider their remarks on the floor and in committee in the upcoming session when discussing motives behind particular bills. Intemperate remarks can hinder the ability of the Attorney General’s Office to defend challenged laws.

The court did say that the law could be enforced for reasons of “force, threat . . or trespass” and encouraged the Idaho Legislature to delete the term “misrepresentation”.

Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (  He has an extensive background in politics and public policy. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..