A federal court in Idaho has denied, in part, the motion to dismiss filed by state officials in a challenge filed by animal-rights activists and other groups to a law that criminalizes the undercover investigations of agricultural operations. Animal Legal Defense Fund v. Otter, No. 14-0104 (U.S. Dist. Ct., D. Idaho, order entered September 4, 2014). The court agreed to dismiss the governor who lacked enforcement authority under the law and emphasized that its rulings did not address the merits of the plaintiffs’ claims of First Amendment and Equal Protection violations, as well as preemption under three federal laws that protect whistleblowers.

According to the court, the law was enacted after Mercy for Animals Dairy released a video of workers abusing cows at an Idaho dairy. The footage had been obtained by an undercover investigator who misrepresented his identity to gain access to the facility and made the audiovisual recordings without the dairy owner’s knowledge or consent. As a result of the undercover investigation, the dairy owners fired the employees shown in the video, installed surveillance cameras throughout their facility and promised to use the video as an employee-training tool. The Idaho Dairymen’s Association then wrote and sponsored a bill that would criminalize this type of undercover investigation by creating the new crime of “interference with agricultural production,” and it was swiftly enacted.

The court rejected the state’s challenge to the plaintiffs’ standing as to subsection (c) of the law—criminalizing the act of gaining employment with an agricultural production facility by force, threat or misrepresentation with the intent to cause economic or other injury to the facility’s operation—but not subsection (e)—criminalizing intentional acts that cause physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings, or premises. The court found that the plaintiffs had alleged a concrete plan to violate subsection (c) but not subsection (e), and the plan could subject them to prosecution.

The court also rejected the state’s claim that the law “does not implicate the First Amendment because it is a generally applicable law aimed solely at wrongful conduct, not speech.” In this regard, the court stated, “If [the plaintiffs’] allegations prove true—that the law was not designed as a generally applicable prohibition on fraud or trespass or conversion, but rather as an indirect penalty for criticizing animal agriculture—the Court would have to apply at least some degree of heightened scrutiny.” The court cited precedent establishing that “the state cannot make it a crime to publish lawfully obtained, truthful information about a matter of public significance.”

The court further disagreed that the law regulates conduct and not speech, ruling that both types of expressive activity—certain misrepresentations and audiovisual recordings, i.e., conduct preparatory to speech—are protected speech. Among other matters, the court referred to protected union activity in discussing whether misrepresentations constitute protected speech, noting that paid union representatives may lie about or omit information about union affiliation in an employment application to gain access to a facility to solicit support for union representation. As to audiovisual recordings, the court distinguished between those who record and do not disseminate—and thus will never be punished for filming—and those who record and choose to publish their videos. “A law that expressly punished activists for publishing videos of agricultural operations would be considered a regulation of speech,” the court wrote, and because enforcement of the law would have the same effect, “it too should be considered a regulation of speech.”

With the law singling out just one type of speech, the court found that it would be subject to strict scrutiny and would “pass constitutional muster only if [it is] the least restrictive means to further a compelling interest.” In the court’s view, those who will be prosecuted under the law are those who film abuse on a farm but not those who film, for example, the owner’s children visiting the farm in a positive light. The legislative history purportedly buttressed this conclusion. The complaint includes legislator statements about preventing animal rights activists’ speech, the need to protect the dairy industry from “the court of public opinion,” and references to animal rights activists as “terrorists,” “extremists,” “vigilantes,” and “marauding invaders.”

The court further found that the plaintiffs had stated a plausible equal protection claim, ruling that the law creates a classification between whistleblowers generally and whistleblowers in the agricultural industry and had allegedly been enacted with animus. Citing recent U.S. Supreme Court jurisprudence, the court noted that the legislature’s “actual purposes” are relevant to an equal protection “more searching form of rational basis review,” particularly where the law exhibits “a desire to harm a politically unpopular group.” In light of the complaint’s animus allegations, if proven true, “the Court must skeptically scrutinize any offered justifications for section 18-7042 to determine whether bare animus motivated the legislation or whether the law truly furthers the offered purposes. To be rational, a law must serve a ‘legitimate’ end, and antipathy can never be a legitimate end.”

The court concluded by finding that the preemption claims, brought as a facial challenge and not as applied, were ripe for review, observing that the plaintiffs face an immediate dilemma: they must choose between complying with the law and risking prosecution by engaging in whistleblower conduct that they claim federal law explicitly encourages and protects. “There can be no question that [the plaintiffs have] expressed a present intention to engage in conduct that could subject [them] to prosecution under section 18-7042,” which they allege is unconstitutional.