Animal Legal Defense Fund v. Wasden

878 F.3d 1184

ANIMAL LEGAL DEFENSE FUND; People for the Ethical Treatment of Animals Inc.; American Civil Liberties Union of Idaho ; Center for Food Safety; Farm Sanctuary; River’s Wish Animal Sanctuary; Western Watersheds Project ; Sandpoint Vegetarians; Idaho Concerned Area Residents for the Environment ; Idaho Hispanic Caucus Institute for Research and Education; Counterpunch; Farm Forward; Will Potter ; James McWilliams ; Monte Hickman; Blair Koch; Daniel Hauff, Plaintiffs–Appellees,

v.Lawrence G. WASDEN, in His Official Capacity as Attorney General of Idaho, Defendant–Appellant.

No. 15-35960

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2017 Seattle, Washington

Filed January 4, 2018

Carl Jeffrey Withroe (argued) and Clay R. Smith, Deputy Attorneys General; Steven L. Olsen, Chief of Civil Litigation; Lawrence G. Wasden, Attorney General; Office of the Attorney General, Boise, Idaho; for Defendant–Appellant.

Justin F. Marceau (argued), Of Counsel, Animal Legal Defense Fund, Denver, Colorado; Matthew Liebman, Animal Legal Defense Fund, Cotati, California; Alan K. Chen, University of Denver, Sturm College of Law, Denver, Colorado; Matthew Strugar, PETA Foundation, Los Angeles, California; Leslie A. Brueckner, Oakland, California; Paige M. Tomaselli and Cristina R. Stella, Center for Food Safety, San Francisco, California; Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, Idaho; Maria Andrade, Boise, Idaho; for Plaintiffs–Appellees.

James J. Pizzirusso and Sarah R. LaFreniere, Hausfeld, Washington, D.C., for Amicus Curiae Plant Based Foods Association.

Marty Durand and James Piotrowski, Herzfeld & Piotrowski PLLC, Boise, Idaho, for Amici Curiae Idaho Building Trades Council and Idaho AFL–CIO.

Sarah L. Nash, Government Accountability Project Food Integrity Campaign, Washington, D.C.; Craig H. Durham, Ferguson Durham PLLC, Boise, Idaho; for Amicus Curiae Government Accountability Project.

R. Bruce Rich and Jonathan Bloom, Weil Gotshal & Manges LLP, New York, New York, for Amici Curiae Association of American Publishers, American Booksellers for Free Expression, Authors Guild Inc., Freedom to Read Foundation, and Media Coalition Foundation.

Hannah Connor, Center for Biological Diversity, Washington, D.C.; Tarah Heinzen, Food & Water Watch, Washington, D.C.; for Amici Curiae Center for Biological Diversity and Food & Water Watch.

David A. Schulz, Media Freedom & Information Access Clinic, New York, New York; Jonathan M. Manes, New Haven, Connecticut; for Amici Curiae Abrams Institute for Freedom of Expression and Scholars of First Amendment and Information Law.

Bruce D. Brown, Gregg P. Leslie, and Michael J. Lambert, Reporters Committee for Freedom of the Press, Washington, D.C., for Amici Curiae Reporters Committee for Freedom of the Press and 22 Media Organizations.

Deepak Gupta, Gupta Wessler PLLC, Washington, D.C., for Amicus Curiae Erwin Chemerinsky.

Andrew P. Bridges, Alexis I. Caloza, and Kathleen Lu, Fenwick & West LLP, San Francisco, California, for Amicus Curiae United Farm Workers of America. Geoffrey J. McConnell, McConnell Wagner Sykes & Stacey PLLC, Boise, Idaho, for Amicus Curiae Susannah W. Pollvogt, Scholar of the Law of Unconstitutional Animus.

Shayana Kadidal, Center for Constitutional Rights, New York, New York, for Amici Curiae Professors Brooke Kroeger and Ted Conover.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amici Curiae Food Law & Policy Scholars.

Before: M. Margaret McKeown, Richard C. Tallman, and Carlos T. Bea, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Bea

McKEOWN, Circuit Judge:

Investigative journalism has long been a fixture in the American press, particularly with regard to food safety.¹ In the early 1900s, Upton Sinclair highlighted conditions in the meat-packing industry in The Jungle , a novel based on his time working incognito in a packing plant.² This case also originates in the agricultural sector—a secretly-filmed exposé of the operation of an Idaho dairy farm. By all accounts, the video was disturbing: dairy workers were shown dragging a cow across the ground by a chain attached to her neck; twisting cows’ tails to inflict excruciating pain; and repeatedly beating, kicking, and jumping on cows to force them to move.³

After the film went live on the Internet, both the court of public opinion and the Idaho legislature responded, with the latter eventually enacting the Interference with Agricultural Production law. Idaho Code § 18–7042. That legislation—targeted at undercover investigation of agricultural operations—broadly criminalizes making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the facility without the owner’s consent. Statutes of this genre—dubbed by some as Ag–Gag laws—have been passed in several western states.⁴

This appeal highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry. Idaho challenges the district court’s determination that four subsections of the statute— § 18–7042(1)(a)–(d) —are unconstitutional on First Amendment and Equal Protection grounds. The Animal League Defense Fund and various other animal rights organizations (collectively "ALDF") urge us to uphold the district court’s injunction against enforcement of the statute, arguing that the law criminalizes whistleblower activity and undercover investigative reporting—a form of speech that has brought about important and widespread change to the food industry, an arena at the forefront of public interest.

Our analysis is framed by the Supreme Court’s decision in United States v. Alvarez , which addressed the First Amendment and false speech. 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). We conclude that Idaho’s criminalization of misrepresentations to enter a production facility, § 18–7042(1)(a), and ban on audio and video recordings of a production facility’s operations, § 18–7042(1)(d), cover protected speech under the First Amendment and cannot survive constitutional scrutiny. In contrast, in accord with Alvarez , Idaho’s criminalization of misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. § 18–7042(1)(b)–(c). Thus, we affirm in part and reverse in part the district court’s entry of summary judgment in favor of ALDF and vacate in part its permanent injunction against enforcement of the statute.

We are sensitive to journalists’ constitutional right to investigate and publish exposés on the agricultural industry. Matters related to food safety and animal cruelty are of significant public importance. However, the First Amendment right to gather news within legal bounds does not exempt journalists from laws of general applicability. For this reason, we uphold the provisions that fall within constitutional parameters, but strike down those limitations that impinge on protected speech.

Background

The Investigation

In 2012, an animal rights activist went undercover to get a job at an Idaho dairy farm and then secretly filmed ongoing animal abuse there. Mercy for Animals, an animal rights group, publicly released portions of the video, drawing national attention. The dairy farm owner responded to the video by firing the abusive employees who were caught on camera, instituting operational protocols, and conducting an animal welfare audit at the farm. Local law enforcement authorities launched an investigation that culminated in the conviction of one of the employees for animal cruelty. After the video’s release, the dairy farm owner and his family received multiple threats.

Idaho’s Interference with Agricultural Production Statute

In February 2014, Idaho enacted a law criminalizing "interference with agricultural production" to protect Idaho farmers. See Idaho Code § 18–7042. Relevant here, a person commits the crime of interference with agricultural production if the person knowingly:

(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[.]⁵

Idaho Code § 18–7042(1)(a)–(d).

For purposes of this statute, the term "agricultural production" broadly covers "activities associated with the production of agricultural products for food, fiber, fuel and other lawful uses," and other activities such as "[p]reparing land for agricultural production" and "[h]andling or applying pesticides ...."⁶ Id. § 18–7042(2)(a). The term "agricultural production facility" is broad and covers "any structure or land, whether privately or publicly owned, leased or operated, that is being used for agricultural production." Id. § 18–7042(2)(b).

Interference with agricultural production is a misdemeanor punishable by up to one year in prison or a fine not in excess of $5,000, or both. Id. § 18–7042(3). A person convicted of this crime must pay restitution to the victim in an amount of twice the damage resulting from violation of the statute. Id. § 18–7042(4). This damages payment includes a victim’s "economic loss[es]." Id. § 19–5304.

The legislative history reveals a complex...