Expect challenges in the Midwest to so-called “ag-gag” laws, laws that criminalize certain forms of data collection and recording on farms and ranches, after a series of challenges have left Utah’s law permanently struck down and Wyoming’s on shaky ground.
On Wednesday, the Utah attorney general’s office said it would not appeal a federal judge’s decision to strike down the state’s law as unconstitutional, effectively killing the legislation.
“[Ag-gag] laws in states like Iowa and Kansas are crying out for a challenge at this point,” says University of Denver law professor Justin Marceau, one of the attorneys representing animal rights groups in the Utah case.
Animal rights groups emboldened by the Utah decision — like the Animal Legal Defense Fund and People For The Ethical Treatment of Animals — are already preparing challenges to ag-gag statutes in at least two more states, Marceau says.
Ag-gag laws were borne out of farmers’ and ranchers’ frustrations with animal rights activists surreptitiously recording video of purported abuse and then publishing the video for public consumption. Because the undercover agents are often legitimately hired by farms and ranches, the targeted farmers didn’t have legal recourse once the videos surfaced. By criminalizing the collection of images without consent, the animal activists are suddenly opened up to potential charges.
Kansas, Montana, North Dakota, Iowa, Missouri, Arkansas, North Carolina and Alabama all have some form of an ag-gag law currently on the books.
The Utah statute made it illegal to record video or take photographs inside an agricultural operation without the property owner’s consent. A handful of animal rights groups challenged the law as unconstitutional, saying it violated free speech protections. A federal judge agreed in July and after the state announced it would not appeal, animal rights groups trumpeted the news.
“Utah’s decision not to appeal its loss is a signal to other states that these unconstitutional Ag-Gag laws are indefensible,” says Stephen Wells, executive director of the Animal Legal Defense Fund, one of the animal rights groups that challenged the Utah law, in a written statement. “Should Utah’s legislature try to pass a new Ag-Gag law to replace the last one, we’ll see them back in court.”
A federal judge struck down a similar law in Idaho in 2015, saying it was unconstitutional given the First Amendment’s free speech protections. That decision set the stage for further challenges to ag-gag laws across the country.
In Wyoming, a law in the same family as ag-gag laws bans collection of data on public lands if the data collector has to traverse private lands to collect it and has plans to turn the data over to the state or federal government.
Wyoming’s so-called “data-trespassing” laws were targeted to curb collection of soil and water samples, Marceau says, but were more broadly written to ban collection of other forms of data,. Those can include photos and videos of purported animal abuse, water samples of contaminated streams, air samples near oil wells, or written notes on the health of trees or wildlife. The Wyoming law also targeted data collection not just on private property, which is already covered by trespassing laws, but on some public land as well.
In a Slate article that went viral in 2015, University of Denver law professor Justin Pidot argued that interpreted one way, taking a photograph of Ol’ Faithful in Wyoming’s Yellowstone National Park could be a criminal act if the photographer submitted the image to a contest sponsored by the National Weather Service. First-time offenders could face a year in prison and $1,000 fine. Trespass again and the punishment would be even more harsh.
In 2016, a Wyoming judge ruled the state’s data-trespass laws did not constrain constitutionally-protected speech and therefore could be allowed. But this week, the 10th Circuit Court of Appeals disagreed, saying the laws did infringe on speech protected by the First Amendment. The appeal court decision sends the case back to the district court for another ruling.
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