Animal Legal Defense Fund v. Wasden
878 F.3d 1184 (2018)
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Rule of Law:
Under the First Amendment, laws criminalizing false statements are unconstitutional unless the statements are made to effect a fraud, secure a material gain, or inflict a legally cognizable harm. A law that prohibits the act of recording based on its subject matter is a content-based restriction on speech subject to strict scrutiny.
Facts:
- In 2012, an animal rights activist went undercover to secure a job at an Idaho dairy farm.
- While employed, the activist secretly filmed ongoing animal abuse, including workers dragging a cow by a chain, twisting cows' tails, and repeatedly beating and kicking them.
- An animal rights group, Mercy for Animals, publicly released the video, which drew national attention and public outcry.
- The dairy farm owner fired the abusive employees, one of whom was later convicted of animal cruelty.
- In response to the video and its aftermath, the Idaho legislature, with support from the Idaho Dairymen’s Association, enacted the Interference with Agricultural Production law (Idaho Code § 18-7042) in 2014.
- The law criminalized entering an agricultural facility by misrepresentation, obtaining its records by misrepresentation, obtaining employment by misrepresentation with intent to cause injury, and making unauthorized audio or video recordings of its operations.
Procedural Posture:
- The Animal Legal Defense Fund (ALDF) sued Lawrence G. Wasden, Attorney General of Idaho, in the U.S. District Court for the District of Idaho.
- ALDF alleged that Idaho Code § 18-7042 violated the First and Fourteenth Amendments.
- The district court granted summary judgment in favor of ALDF.
- The district court concluded that the challenged subsections of the statute were unconstitutional and permanently enjoined their enforcement.
- The State of Idaho (appellant) appealed the district court's judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Do subsections (a), (b), (c), and (d) of Idaho's 'Interference with Agricultural Production' law, which criminalize misrepresentations to gain entry, obtain records, secure employment, and make unauthorized recordings, violate the First Amendment's protection of free speech?
Opinions:
Majority - Judge McKeown
Yes, in part, and no, in part. Idaho’s criminalization of misrepresentations to enter a facility and its ban on unauthorized recordings violate the First Amendment, but its criminalization of misrepresentations to obtain records and secure employment do not. Citing United States v. Alvarez, the court reasoned that false speech is protected unless it is made for material gain or inflicts a legally cognizable harm. Subsection (a), which criminalizes entry by misrepresentation, is unconstitutional because merely lying to gain access does not, on its face, constitute a material gain or a legally cognizable harm and the law is overbroad. Subsection (d), the recordings ban, is an unconstitutional content-based restriction on speech because it singles out recordings of a specific subject ('operations') for prohibition and fails strict scrutiny as it is not narrowly tailored to protect property and privacy rights. Conversely, subsection (b), which criminalizes obtaining records by misrepresentation, is constitutional because it targets a legally cognizable harm—the theft or conversion of property. Subsection (c), criminalizing obtaining employment by misrepresentation with intent to injure, is also constitutional because Alvarez explicitly identifies lies to secure offers of employment as a form of unprotected speech made for material gain.
Concurring-in-part-and-dissenting-in-part - Judge Bea
No, in part. The majority is wrong to strike down the provision criminalizing entry by misrepresentation because such entry constitutes a legally cognizable harm. The dissent argues that the majority misapplies United States v. Alvarez by failing to recognize that an unconsented entry onto private property is a common law trespass. A trespass is, by its very nature, a legally cognizable harm that infringes on the fundamental property right to exclude others. Therefore, a lie that vitiates consent for entry directly causes this harm and is not protected speech. The statute does not regulate 'pure speech' but rather the conduct of entering property through a lie. The dissent concurs with the majority's decision to uphold the subsections related to obtaining records and employment.
Analysis:
This decision significantly shapes the legal landscape for challenges to 'Ag-Gag' laws across the country by applying the Supreme Court's Alvarez framework. It creates a crucial distinction between different types of undercover activities, shielding misrepresentations made purely for access while allowing states to prohibit those causing tangible harms like theft or fraudulent employment. The ruling strongly reinforces that the act of recording is protected expression and that content-based restrictions on it are subject to strict scrutiny, making it more difficult for legislatures to selectively silence whistleblowing on controversial industries.
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