“Ag-Gag” Laws

“Ag-Gag” Laws

By: Kellen Miller

This past September the United States Court of Appeals for the 10th Circuit handed down a decision which has the potential to mark a shift in the trajectory of “ag-gag” laws. The term “ag-gag,” which was made popular in 2011 in an opinion piece by food journalist and former columnist for the New York Times Mark Bittman, originally referred specifically to anti-whistleblowing legislation which suppressed the work of photographers and videographers seeking to expose cruel and inhumane treatment of animals by factory farmers.[1] The American Society for the Prevention of Cruelty to Animals (ASPCA) submits that the animal-agriculture industry has been behind the introduction of “ag-gag” bills in more than half of all state legislatures across the U.S. and that eight states currently have some form of “ag-gag” on the books.[2]

Over time, however, the use of the term “ag-gag” has expanded. While many ag-gag laws make it illegal to enter factory farms for the purpose of collecting data and documenting legal violations, in other states the law is not limited simply to farms. There, the laws criminalize the collection and gathering of any data regarding environmental conditions from public lands, even if one accidentally touches private land on the way to that public land.[3] To ecologists and other life scientists, this data is invaluable. It reduces procedural uncertainty by tracking, monitoring, and evaluating the effectiveness of environmental management choices.[4] It can also pinpoint new environmental problems that require the attention of regulators, creating political or legal pressure for the implementation of new standards.[5]

The latest and perhaps most potent illustration of this conflict emerged recently in Wyoming in case entitled Western Watersheds Project v. Michael. Backed by Wyoming livestock interests, the Wyoming legislature adopted what are now known as Data Censorship Statutes (basically “ag-gag” laws), which, according to Western Watersheds Project, an environmental watchdog organization and lead plaintiff in the case, was done specifically to deter and punish persons who gather such environmental data without express authorization.[6] In reality, these laws–even after certain revisions–became so broad that the practical effect was, for example, to criminalize the behavior of recreationists taking pictures on public lands if they had crossed private lands to get there.[7]

In response, Western Watersheds, Natural Resources Defense Council, the National Press Photographers Association, and others joined together to challenge the constitutionality of the revised Wyoming Data Censorship Statutes, claiming First Amendment violations.[8]

At trial, defendants moved to dismiss on the basis that plaintiffs failed to state a claim that data collection[9] is an activity protected by the First Amendment.[10] The United States District Court for the District of Wyoming agreed, granting defendants’ motion to dismiss and concluding that even the revised versions of the statutes did not implicate protected speech because no constitutional right exists that would allow plaintiffs or other similarly situated parties to trespass upon private property to collect resource data.[11] Put simply, the District Court found that plaintiffs could not be granted free speech protections on public lands if they first illegally trespassed onto private land in order to reach that public land.

On appeal, however, the 10th Circuit reversed and remanded, holding that the revised statutes do apply specifically to the creation of speech because the creation and dissemination of information–here, collecting and circulating resource data–constitutes speech within the meaning of the First Amendment.[12] Jonathan Ratner, the lead attorney for Western Watersheds Project, hailed the ruling as “a victory for citizen science and for conservation groups who enforce environmental protection standards when agencies turn a blind eye, and a resounding defeat for the State of Wyoming’s efforts to shield special interests from public scrutiny, oversight, and accountability.”[13]

While it remains up to the District Court to determine the fate of Wyoming’s Data Censorship Statutes on remand, Western Watershed appears to illustrate that opponents can utilize the constitution–specifically the First Amendment–as a legal basis to fight “ag-gag” legislation in court. In the future, it seems likely that these disputes will be framed in the same free speech versus right to privacy debate typified by Western Watershed. If other courts calculate, as the 10th Circuit did, that plaintiffs’ first amendment rights outweigh defendants’ rights to exclude, it could spell trouble for “ag-gag” backers, possibly opening the door for the stripping away and repeal of “ag-gag” legislation.

The fun, it seems, has only just begun!

 

[1] Mark Bittman, Who Protects the Animals?, N.Y. Times (Apr. 26, 2011), https://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/.

[2] What is Ag-Gag Legislation? American Society for the Prevention of Cruelty to Animals, https://www.aspca.org/animal-protection/public-policy/what-ag-gag-legislation#Ag-Gag%20by%20State.

[3] Wyoming Data Censorship Laws Entitled to First Amendment Review, National Press Photographers Association, https://nppa.org/news/wyoming-data-censorship-laws-entitled-review.

[4] Eric Biber, The Challenge of Collecting and Using Environmental Monitoring Data, 18 Ecology and Society, 68 (2013), https://www.ecologyandsociety.org/vol18/iss4/art68/.

[5] Id.

[6] Complaint for Declaratory and Injunctive Relief, W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106) (No. 15-Dv-169).

[7] Erik Molvar, Court Smacks Down Wyoming Efforts to Suppress Science, The Hill (Sept. 9, 2017) http://thehill.com/blogs/pundits-blog/energy-environment/349863-court-smacks-down-wyoming-efforts-to-suppress-science.

[8] Complaint for Declaratory and Injunctive Relief, W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106) (No. 15-Dv-169).

[9] Under the Wyoming statute, the term “collect” means: (1) “to take a sample of material” or “acquire, gather, photograph or otherwise preserve information in any form”; and (2) “recording . . . a legal description or coordinates of the location of the collection.” See Wyoming Statutes Title 6 §§ 6-3-414(e)(i); 40-27-101(h)(i).

[10] W. Watersheds Project v. Michael, 196 F. Supp. 3d 1231 (D. Wyo. 2106).

[11] W. Watersheds Project v. Michael, No. 16-8083 (10th Cir., entered September 7, 2017)

[12] Victoria Prieskop, Tenth Circuit Won’t Give Wyoming’s Ag-Gag Law a Free Pass, Courthouse News Service, https://www.courthousenews.com/tenth-circuit-wont-give-wyomings-ag-gag-law-free-pass/.

[13] Id.

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