Idaho asks appeals court to uphold ban on spying at farms

By GENE JOHNSON / Associated Press

SEATTLE — Idaho asked a federal appeals court Friday to reinstate its ban on spying at farms, dairies and slaughterhouses after a lower court judge sided with animal rights activists who said the ban violated free speech rights.

Idaho lawmakers in 2014 made it a criminal offense to enter agricultural facilities by misrepresentation to gain access to records or to make undercover audio or video recordings. The state’s large dairy industry had complained that videos of cows being abused at a southern Idaho dairy unfairly hurt business.

Animal rights activists, civil rights groups and media organizations sued, saying the law criminalized a long tradition of undercover journalism and would require people who expose wrongdoing to pay restitution to the businesses they target.

A federal judge in Idaho agreed, blocking the law as an unconstitutional infringement of the First Amendment of the U.S. Constitution safeguarding free speech, the first time such a law had been struck down.

Seven states have similar measures — Kansas, North Dakota, Montana, Iowa, Utah, Missouri and North Carolina. Legal challenges are pending in Utah and North Carolina.

Idaho deputy attorney general Carl Withroe told three 9th U.S. Circuit Court of Appeals judges in Seattle that the law “is a time-honored and legitimate exercise of the state’s police powers.”

States have a right to criminalize lying on job applications or concealing their purpose to gain access to — and harm — such private facilities, he said.

“All this law does is require the person to get consent” before entering the facility and recording, Withroe said. Idaho has no plans to try to prevent distribution of any recordings made in violation of the law, he said.

The judges expressed skepticism. Trespassing is already a crime in Idaho and the law seemed to target the views of animal rights activists or those who want to expose the practices at the agricultural operations, two of the judges said.

Justin Marceau, a lawyer for the Animal Legal Defense Fund, told the judges that activists have long engaged in misrepresentation, such as by not revealing their true purpose, to gain access to private property to investigate matters of public concern. It’s within their First Amendment rights to do so, he argued.

“The Idaho statute poses a substantial risk of criminalizing lawful — and constitutionally protected — newsgathering activity and chilling the very journalism that has previously led to positive changes and a healthier food supply,” the Washington, D.C-based Reporters Committee for Freedom of the Press said in court documents filed with the appeals panel.

People caught surreptitiously filming Idaho agricultural operations face up to a year in jail and a $5,000 fine — stiffer penalties than state law calls for in animal abuse cases. A first animal cruelty offense in Idaho is punishable by up to six months in jail and a fine of up to $5,000.

The dairy industry pressed for the measure after the Los Angeles-based animal rights group Mercy For Animals released videos that showed workers at Bettencourt Dairy beating and stomping cows in 2012.