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Beehive privacy? 9th Circuit debates ‘ag gag’ law

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Judges from the 9th U.S. Circuit Court of Appeals questioned the constitutionality of an Idaho law criminalizing secret recordings of farms.

Debates over Idaho’s so-called “ag gag” law, which criminalized secret audiovisual recordings of farm operations, often center on the livestock industry.

It was an undercover video of cattle abuse at an Idaho dairy, after all, that inspired state lawmakers to pass the statute in 2014.

During oral arguments on May 12 about the law’s constitutionality before the 9th U.S. Circuit Court of Appeals in Seattle, Judge Mary Margaret McKeown approached the matter from an angle that didn’t involve dairy cows.

“It could apply to beekeeping too, right? So does a beehive have a privacy interest?” McKeown asked Idaho’s deputy attorney general, Carl Withroe.

Withroe acknowledged that beehives would be covered by the statute but said they probably lack the right to personal privacy.

However, the farmer does have the right to control who enters his property and to exclude those who want to record its operations without permission, he said.

The judge seemed to think that argument was beside the point.

“But that’s trespass, not privacy, that you’re talking about,” she said, later adding that “corporations don’t have a privacy interest.”

McKeown’s observation that “it keeps coming down to trespass” could be problematic for Idaho’s defense of the law, which was struck down nearly two years ago by a federal judge who found it violated free speech rights.

Trespass is already prohibited by Idaho law in the legitimate interest of protecting private property, while other statutes aim to protect people from defamation, theft and fraud, according to the Animal Legal Defense Fund.

ALDF claims the real goal of the “ag gag” law, on the other hand, is the illegitimate purpose of suppressing speech that casts a negative light on the farm industry.

As for privacy rights, the law’s opponents argue that farms are effectively “industrial facilities” that don’t have the same expectations of privacy as people.

Idaho’s lawyers counter that the law simply requires people to obtain a farmer’s permission to enter his property and film operations without misrepresenting who they are.

The statute regulates the ability to use a tool, such as a camera, on private property, rather than restricting “expressive conduct,” according to Idaho.

“There is no First Amendment right to make those recordings in the first place,” said Withroe.

Since the law simply restricts the ability to record on private property, without distinguishing between favorable and unfavorable coverage, the regulation is impartial regarding content and thus doesn’t violate free speech rights, he said.

Judge Carlos Bea seemed skeptical of this argument, noting that people who violate the statute must pay the farmer double the amount of losses caused by the crime in restitution — a requirement that’s unlikely to be triggered by a positive portrayal.

“It isn’t viewpoint-neutral. It’s directed to the operations only, and only to pejorative reports of the operations,” Bea said.

Though Idaho’s legal theory was subject to much of the tough questioning by the three 9th Circuit judges, they also pushed back against some arguments by ALDF’s attorney, Justin Marceau.

Specifically, the judges inquired about provisions of the law that prohibit using misrepresentation to gain access to records, obtain employment or economically harm the farm.

At one point, Judge Richard Tallman wondered whether ALDF could live with a narrower injunction against the Idaho law than the current order entirely blocking its enforcement.

“The misrepresentation is basically for the purpose of surreptitiously obtaining the record. It doesn’t have anything to do with speech about the production facility’s operation, does it?”

Marceau responded that such misrepresentation is within the scope of free speech protections provided by the First Amendment, similar to misleading political statements.

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