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Still from the Mercy for Animals video of Bettencourt Dairy, Idaho.

A dairy worker kicks a cow on the nose in the Bettencourt Dairy, Idaho. The photo is a still from the Mercy for Animals video, which triggered Idaho's 'ag gag' law.

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Success for challenge to Idaho 'ag-gag' law

Oliver Tickell

5th September 2014

A legal challenge to a draconian Idaho law that outlaws free speech about animal abuses on factory farms has survived a 'motion to dismiss' in a federal court. The challenge, mounted by free speech, animal welfare, food and environment groups, claims the 'ag gag' law is unconstitutional.

The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech.

A federal district court has allowed an anti 'ag gag' lawsuit to proceed against the state of Idaho.

The constitutional challenge is brought by a coalition of national nonprofits dedicated to civil liberties, animal protection, food safety, labor rights, and the environment, along with journalists.

Plaintiffs include the Animal Legal Defense Fund (ALDF), People for the Ethical Treatment of Animals (PETA), the American Civil Liberties Union of Idaho (ACLU), and Center for Food Safety (CFS).

The public interest coalition filed the federal lawsuit to overturn Idaho's controversial 'ag gag' statute, which criminalizes whistle-blowing investigations at factory farms, and specifically targets animal advocates who expose illegal practices.

The coalition argues that Idaho's ag gag law violates the First Amendment and the Equal Protection Clause of the US Constitution and is preempted by federal laws that protect whistle-blowers.

The 33-page ruling rejects Idaho's motion to dismiss the lawsuit, and. The case will now move forward to the discovery phase of legal proceedings.

A violation of free speech

Under the controversial law, anyone who films or records on an agricultural operation without permission faces a $5,000 fine and up to a year in jail - double Idaho's maximum jail sentence for animal cruelty.

For a second offence the law allows a fine of $7,000 and nine months in jail.

The ag gag legislation, which was conceived and promoted by Idaho's powerful dairy industry, followed the release of videos (see video embed, below) by Los Angeles-based vegetarian and animal rights group Mercy for Animals.

The videos show workers at Bettencourt Dairy beating, stomping on and sexually abusing cows. An animal welfare campaigner secretly filmed the extreme abuse after getting a job at the dairy.

Idaho governor C.L. 'Butch' Otter signed the law, Idaho Code sec. 18-7042, into effect in February 2014.

In clear breach of the US constitution

"I am confident that this law will be struck down under Ninth Circuit and Supreme Court precedents", said Professor Erwin Chemerinsky, constitutional law expert and dean at the University of California, Irvine School of Law.

"The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace."

Idaho is just one of a dozen states that have ag gag laws in place. Many of the laws are based on model legislation advanced by ALEC, the American Legislative Exchange Council, in 2002.

If the constitutional challenge to the Idaho law succeeds, ag gag laws in other states are likely to go the same way.


A 2-minute version of the Mercy for Animals Bettencourt Dairy video.



The plaintiffs are ALDF, PETA, ACLU, CFS, Farm Sanctuary, River's Wish Animal Sanctuary, Western Watersheds Project, Sandpoint Vegetarians, Idaho Concerned Area Residents for the Environment (ICARE), Idaho Hispanic Caucus Institute for Research and Education (IHCIRE), the political journal CounterPunch, Farm Forward,  journalist Will Potter, Professor James McWilliams, investigator Monte Hickman, investigative journalist Blair Koch, and undercover investigations consultant Daniel Hauff. They are represented by in-house counsel, Public Justice, and the law firm of Maria E. Andrade.



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