3/24/2014 2:18:00 AM,
Philip A. Janquart
BOISE (CN) - An Idaho state senator likens investigative journalists to terrorists, the ACLU and others say in a federal lawsuit that challenges the constitutionality of an emergency "Ag Gag" law, which the plaintiffs say is meant to hide animal abuse and chill free speech.
Gov. Butch Otter signed the Senate Bill 1337 into law Feb. 28, making Idaho the seventh state to pass such a measure.
Under the law, anyone caught secretly filming "agricultural production" is subject to a prison term and a fine.
Twelve organizations and five people filed a 52-page federal complaint against the governor and attorney general last week.
The long list of plaintiffs includes the Animal Legal Defense Fund, People for the Ethical Treatment of Animals (PETA), the Center for Food Safety, the American Civil Liberties Union of Idaho and the Western Watersheds Project, along with news journal CounterPunch, Washington, D.C. journalist Will Potter, freelance Idaho journalist Blair Koch and agricultural investigations expert Daniel Hauff.
Idaho's law was enacted as "an emergency provision, which went into effect immediately upon the governor's signature," according to the complaint.
The plaintiffs say the law violates the First and 14th Amendments to the Constitution, as well as the Supremacy Clause.
Prior to his political career, Otter was a member "on the Board of Directors of the J.R. Simplot Company," according to a state website. "He also served as Director of the Food Products Division, [was] President of Simplot Livestock, and President of Simplot International. He retired in 1993." The Ag Gag Law
"In essence, the law criminalizes undercover investigations and videography documenting the 'production of agricultural products for food, fiber, fuel and other lawful uses,'" according to the lawsuit.
"The law makes it criminal to document animal welfare, worker safety and food safety violations at an 'agricultural production facility,' thus 'gagging' speech that is critical of industrial agriculture, including speech that advances significant public interests in protecting Idahoans' safety."
The law's language is so broad it can be interpreted to apply to just about anyplace in the state where food is made into meals, public or private, the plaintiffs say.
Violating the law is punishable by a year in prison and up to a $5,000 fine.
"The law defines agricultural production to include 'the processing and packaging of agricultural products into food.' So under that definition, every residential kitchen in Idaho is an agricultural production facility," Matthew Liebman, attorney for the Animal Legal Defense Fund, told Courthouse News on Friday.
"It also includes 'planting, irrigating, growing, fertilizing, harvesting or producing agricultural, horticultural, floricultural and viticultural crops, fruits and vegetable products, field grains, seeds, hay, sod and nursery stock, and other plants, plant products, plant byproducts, plant waste and plant compost,' such that virtually every yard and garden (and public park) is an agricultural production facility. So taking a video of someone's lawn or kitchen without their express permission would violate the ag gag law." The Investigation
Animal rights group Mercy for Animals (MFA) Executive Director Nathan Runkle said in a Feb. 28 statement that, "Mercy For Animals is exploring all legal avenues to overturn this dangerous, unconstitutional, and un-American law. This is a sad day for animals, consumers, the constitution, and the media. ... Idaho's flawed and misdirected new law will now throw shut the doors to industrial factory farms and allow animal abuse, environmental violations, and food contamination to flourish undetected, unchallenged, and unaddressed."
Mercy for Animals, which is not a party to this lawsuit, made national news when it revealed video evidence of the alleged "brutal abuse of cows" at Bettencourt Dairies in Wendell, Idaho in 2012.
The video, which showed employees beating and shocking cows, led to criminal charges against three employees, one of whom pleaded guilty to a misdemeanor charge of animal cruelty, according to the MFA.
The footage was broadcast on ABC News "Nightline," creating a firestorm, some of which was allegedly directed toward farm owner Luis Bettencourt in the form of death threats, spurring the legislation.
Sen. Jim Patrick, R-Twin Falls, who serves as vice chairman of the Agricultural Affairs Committee, is a sponsor of the bill. He said the threats scared Idaho farmers. Animal Cruelty
Mistreatment of animals is a continuing concern, say the activists, who add that not only are some animals beaten, but that they can be sexually assaulted, and that "industry executives" don't want the public to know what is going on behind closed doors.
"Recent undercover investigations at factory farms have found workers kicking pigs in the head, spray painting them in the eyes, stomping and throwing chickens and turkeys like footballs, smashing piglets' heads against concrete floors, and beating and sexually assaulting pigs with steel gate rods and hard plastic herding canes," according to the complaint.
It continues: "In order to silence the undercover investigations and corresponding media coverage that contribute to public debate about animal treatment and food safety, industry executives have made the enactment of factory farm-secrecy statutes, commonly known as 'ag gag' laws because they gag speech that is critical of industrial agriculture, a top legislative priority. In fact, Idaho's ag gag statute was drafted by a lawyer for the Idaho Dairymen's Association."
Liebman said opponents of the ag gag law were "ignored" when they asked if Otter had bowed to corporate factory-farming interests.
"The law was written by a lawyer for the dairy industry, and there's no question that this is part of a larger trend by industries that exploit animals to keep their conduct hidden from public scrutiny," Liebman said. "There was a significant public outcry against this law, both within Idaho and from other parts of the country. Gov. Otter and the Legislature ignored that outcry to put into place a law that aims to shield the ag industry from criticism." What About Journalism?
The plaintiffs claim that though the law illegally singles out animal activists, it could have far-reaching affects on free speech.
"Ag gag laws like Idaho's set a dangerous precedent," Liebman said. "Although they are aimed at critics of industrial agriculture, there's nothing to stop the next embarrassed industry - be it banks, nursing homes, childcare facilities, or what have you - from lobbying the Legislature for a similar law to shield them from the consequences of their actions."
Under the law, employees who want to blow the whistle on safety violations could be punished for documenting infractions.
"Farmworkers and other current employees working at agricultural production facilities cannot even credibly document unsafe conditions in their workplace without risking arrest and prosecution," according to the complaint. "Although investigations and their corresponding media coverage are the primary source of whistleblowing activity in the agricultural industry, the Idaho law makes all such speech effectively impossible."
State Sen. Patrick justified the law by saying that "extremist animal activists were comparable to marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission," according to the complaint.
He added: "'[T]errorism has been used by enemies for centuries to destroy the ability to produce food and the confidence in the food's safety. This is clear in the 6th century B.C. ... This is how you combat your enemies,'" according to the complaint.
Liebman said he found Patrick's comments bizarre.
"It's absurd and an insult to the memory of those who have lost their lives to terrorism," Liebman told Courthouse News. "The brave investigators who expose the torture of animals should be regarded as heroes, not defamed as terrorists."
The plaintiffs say the law prevents independent oversight of the industry, and kills investigative reporting.
"There is a right to receive speech just as much as there is a right to produce it," the complaint states. "The media and academic plaintiffs are committed to a transparent and free-flowing exchange of ideas regarding issues of food safety and animal welfare, and the ag gag law directly impedes their ability to report on these stories by stymieing undercover investigations in the state."
The plaintiffs want the court to declare the law unconstitutional and enjoin its enforcement. They are suing for violation of the First and 14th Amendments, the Supremacy Clause, the False Claims Act, the Food Safety Modernization Act and the Clean Water Act.
Representing the plaintiffs is Richard Eppink of the American Civil Liberties Union of Idaho Foundation, in Boise, and Maria Andrade, of Boise. Joining them pro hac vice are Prof. Justin Marceau of the Animal Legal Defense Fund, University of Denver; Matthew Liebman of the Animal Defense Fund, in Cotati, Calif.; Matthew Strugar of PETA, in Los Angeles; and Paige M. Tomaselli of the Center for Food Safety, in San Francisco.