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Animal Legal Defense Fund v. Wasden

United States Court of Appeals, Ninth Circuit

January 4, 2018

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.

          Argued and Submitted May 12, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Idaho D.C. No. 1:14-cv-00104-BLW B. Lynn Winmill, Chief District Judge, Presiding

          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.

         SUMMARY[*]

         Civil Rights

         The panel affirmed in part and reversed in part the district court's entry of summary judgment in favor of the Animal Legal Defense Fund and vacated in part the district court's permanent injunction against enforcement of Idaho's Interference with Agricultural Production law, Idaho Code § 18-7042.

         The Interference with Agricultural Production law was enacted after a disturbing secretly-filmed expose of operations at an Idaho dairy farm went live on the internet. The statute-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.

         The panel held that Idaho's criminalization of misrepresentations to enter a production facility, § 18-7042(1)(a), could not survive First Amendment scrutiny. The panel held that the subsection criminalized innocent behavior, was staggeringly overbroad, and that the purpose of the statute was, in large part, targeted at speech and investigative journalists. The panel also struck down the statute's subsection which banned audio and video recordings of a production facility's operations, § 18-7042(1)(d). The panel held that the Recordings Clause regulated speech protected by the First Amendment and was a classic example of a content-based restriction that could not survive strict scrutiny.

         The panel held that § 18-7042(1)(b)-which criminalizes obtaining records of an agricultural production facility by misrepresentation-protected against a legally cognizable harm associated with a false statement and therefore survived constitutional scrutiny under United States v. Alvarez, 567 U.S. 709 (2012). Finally, the panel upheld the constitutionality of § 18-7042(1)(c), which criminalizes obtaining employment by misrepresentation with the intent to cause economic or other injury. The panel rejected plaintiffs' argument that the statute would reach "a person who overstates her education or experience to get a job for which she otherwise would not have qualified, whether the person is an undercover investigator or not, " because in such a case, the law's requisite intent to injure would not be satisfied.

         Dissenting in part and concurring in part, Judge Bea stated that subsection § 18-7042(1)(a), pertaining to the criminalization of misrepresentations to enter a production facility, should survive First Amendment review. Judge Bea would hold that the ability to hold property or to exercise control of it requires recognition by courts of the owner's right to exclusive possession of the land-the right to exclude anyone from entry, at any time, and for any reason at all or indeed for no reason.

          OPINION

          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 (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 series of motivations behind the statute. The bill was drafted by the Idaho Dairymen's Association, a trade organization representing Idaho's dairy industry. When the Association's lawyer addressed legislators, he stated that one goal of the bill was "to protect Idaho farmers from wrongful interference. . . . Idaho farmers live and work spread out across the land where they're uniquely vulnerable to interference by wrongful conduct." Another goal was to shield the agricultural industry from undercover investigators who expose the industry to the "court of public opinion, " which destroys farmers' reputations, results in death threats, and causes loss of customers.

         At the time of the passage of this legislation, Idaho already had a law relating to interference with agricultural research-which has not been challenged-prohibiting knowingly damaging or obtaining property at an agricultural research facility with intent to hinder agricultural research; obtaining access to an agricultural research facility by misrepresentation with the intent to perform acts that would hinder agricultural research; entering an agricultural research facility with the intent to damage, alter, duplicate or obtain unauthorized possession of records or property related to the agricultural research; obtaining control over records or property of an agricultural research facility with intent to destroy such property without authorization of the facility; and releasing, stealing, or causing death or injury to an animal at an agricultural research facility. Idaho Code § 18-7040(1). The Idaho Dairymen's Association used this interference with agricultural research law as the framework for § 18-7041.

         Legislators discussed the bill as protecting against two types of perceived harm to agricultural producers. First, lawmakers expressed concern about physical and operational damage caused by animal rights activists who gain access to agricultural production facilities. For example, some legislators discussed concerns about farm security and privacy. Others voiced concerns about the intentional destruction of crops, breeding records, and farm structures.

         Lawmakers also discussed damage caused by investigative reporting: "One of the things that bothers me a lot about the undercover investigation [at the dairy], and the fact that there's videos, well, we're being tried and persecuted and prosecuted in the press." Other legislators used similar language demonstrating hostility toward the release of these videos, and one supporter of the legislation dubbed animal rights groups as "terrorists" who "use media and sensationalism to attempt to steal the integrity of the producer and their reputation." One legislator stated that the dairy industry's reason behind the legislation was "[t]hey could not allow fellow members of the industry to be persecuted in the court of public opinion." Another described these videos as used to "publicly crucify a company" and "as a blackmail tool." Finally, one legislator indicated that if the video had not been published, she did not "think this bill would ever have surfaced."

         Procedural Background

         In March 2014, ALDF filed suit against Lawrence G. Wasden as Attorney General of Idaho.[7] The complaint alleges that the purpose and effect of the statute "are to stifle political debate about modern agriculture by (1) criminalizing all employment-based undercover investigations; and (2) criminalizing investigative journalism, whistleblowing by employees, or other expository efforts that entail images or sounds." ALDF asserts violations of the First and Fourteenth Amendments. Although ALDF claimed preemption under the False Claims Act, Food Safety Modernization Act, and Clean Water Act, ALDF did not address those issues on appeal.

         The district court granted ALDF's motion for summary judgment on its First Amendment and Equal Protection claims. The district court concluded that the prohibitions on misrepresentations in § 18-7042(1)(a)-(c) (the "Misrepresentation Clauses") criminalize speech protected by the First Amendment because Idaho could not "show the lies it seeks to prohibit cause any legally cognizable harm." The court explained that the regulation on audio and video recordings under § 18-7042(1)(d) (the "Recordings Clause") covers speech protected by the First Amendment and discriminates based on content because it criminalizes only "recordings of the conduct of an agricultural production facility's operations." The district court further reasoned that subsections (c) (misrepresentation to gain employment) and (d) (the Recordings Clause) discriminate on the basis of viewpoint because they "burden speech critical of the animal-agriculture industry." Applying strict scrutiny to all challenged provisions, the district court resolved that even if the state's interests in privacy and property were compelling, the restrictions were neither narrowly tailored nor the least restrictive means available to protect those interests.

         The district court also determined that all four challenged subsections violate the Fourteenth Amendment's Equal Protection Clause and fail rational basis review. The subsections fail on their face because they classify between whistleblowers in the agricultural industry and whistleblowers in other industries. The subsections also fail through their purpose because they were "animated by an improper animus toward animal welfare groups and other undercover investigators in the agricultural industry" and "further[] no other legitimate or rational purpose." The court noted that there was "abundant evidence that the law was enacted with the discriminatory purpose of silencing animal rights activists who conduct undercover investigations in the agricultural industry."

         The district court deemed moot ALDF's remaining claims and permanently enjoined enforcement of the challenged subsections. Idaho appeals the district court's grant of summary judgment, which we review de novo. Roberts v. Continental Ins. Co., 770 F.2d 853, 855 (9th Cir. 1985).

         Analysis

         I. The Misrepresentation Clauses: Idaho Code ...


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