Investigative journalism has always been a cornerstone of the freedom of the American press. And, in 2012, an Idaho animal-rights activist investigated an Idaho dairy farm by getting a job there and then filming animal abuse that they witnessed. Soon thereafter, the state enacted and enforced an “Ag-Gag” law (formally titled the Interference with Agriculture Production Act).
The law makes it illegal to make misrepresentations to access an agricultural-production facility. The law also bans making audio or video recordings of the facility without the owner’s consent. In the widely publicized lawsuit by the Animal Legal Defense Fund challenging this law, journalists’ First Amendment rights came into conflict with the state’s efforts to protect the privacy and property rights of the agriculture industry.
Specifically, the ALDF targeted the sections of the law that ban audio and video recordings. In response, Idaho argued that the creation of audiovisual recordings is not speech protected by the First Amendment—an argument that was quickly dispatched by the Ninth Circuit. The Court ruled in a 2-1 decision that audiovisual recordings in and of themselves are protected forms of speech, and the creation of them is too. Therefore, because the law is a content-based regulation (as it regulates only recordings of agricultural production), it must pass strict scrutiny by being necessary to serve a compelling state interest and it must be narrowly tailored to that end.
The State argued that its law served a compelling interest by preserving privacy and property rights. The Court found, however, that even assuming a compelling interest, the law was both under-inclusive and over-inclusive and therefore was not narrowly tailored—it did not pass strict scrutiny. The law was under-inclusive because it did not cover photographs, and it was too specific regarding what the recordings could be of. Recordings of other aspects of agricultural production, such as its buildings or staff meetings, were excluded. In addition, the law was over-inclusive because other laws on the books serve Idaho’s stated interests without further burdening speech. The Court held Idaho’s Ag-Gag law unconstitutional.
Case: Animal Legal Def. Fund v. Wasden, No. 15-35960 (9th Cir. Jan. 4, 2018) (opinion here)