“Ag Gag” Litigation Update

From a recent finding of unconstitutionality in Iowa, to an award of attorney’s fees in Idaho, to a new legal challenge in Kansas, “ag gag” laws have continued to be in the news recently.  “Ag gag” laws are generally designed to prohibit a person from entering an agricultural operation without permission or by fraudulent means and obtaining video or photographs of the operation.  Although nearly half of the states have attempted to pass this type of provision, only eight have done so.  Those states are:  IA, ID, KS, MO, MT, NC, ND, and UT.Although each state’s law differs, generally, two types of provisions are present.  First, most laws prohibit entering an ag operation and obtaining unauthorized video or photographs of the operation.  Second, some laws prohibit an applicant from making false statements on a job application in order to gain entry to an agricultural operation with the intent to video or photograph.Just this month, an Iowa federal court held the Iowa statute unconstitutional. The court took a three-step approach to analyzing this legal challenge.First, the judge held that this statute did apply to “speech.”  Because the statute requires speech–either false or misleading statements–it falls within the definition of speech.  Next, the court considered whether the false statements prohibited by the statute are protected speech.  Not all falsehoods are protected; only those that do not cause a “legally cognizable harm” or provide “material gain” to the speaker fall within the protections of the First Amendment.  The court found the falsehoods at issue under the statute do neither, meaning the First Amendment is applicable.