On February 17, 2008 over 140 million pounds of ground beef destined for consumers and the national school lunch program was recalled following the release of undercover video taken by the Humane Society of the United States. Recordings of animal slaughter facilities and on-farm abuse continued to surface, with each expose resulting in heightened scrutiny. The unwanted attention prompted a meat and poultry industry response in the form of state legislation. The industries lobbied for whistle-blower suppression laws, commonly known as Ag Gag, which would criminalize not only undercover documentation of animal abuse but also recordings of public health violations occurring in agriculture facilities. In Animal Legal Defense Fund v. Otter, Governor of Idaho a non-profit animal rights group challenged Idaho’s Ag-Gag law as unconstitutional.

 Next, write a 3-4 paper addressing the following questions: o Break down the judge’s analysis of Idaho’s challenge: Does the Idaho law outlaw

speech based on its content? Was there a compelling reason for the law’s passage? (Was there a good reason they wanted to pass this law?) Why/why not?

o What are the examples of “compelling reasons” for the government to suppress speech (why would they want to do this)?

o What is “political speech”? In what way does this case involve political speech?

*** Please use each question as section headings

Attached in addition to this PDF is an article you can use for reference as well as a link below or any other references of your choice.

https://www.rcfp.org/briefs-comments/animal-legal-defense-fund-v- otter/#:~:text=statute%20is%20unconstitutional.%E2%80%A6- ,The%20Animal%20Legal%20Defense%20Fund%2C%20ACLU%20of%20Idaho%2C%20and% 20others,the%20facility%20owner's%20express%20consent.

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ANIMAL LEGAL DEFENSE FUND, et al., Plaintiffs, v. C.L. Butch OTTER, in his of�cial capacity as Governor of Idaho; and Lawrence Wasden, in his of�cial capacity as State of Idaho, Defendants.

Country of Origin:  United States

Court Name:  United States District Court, D. Idaho.

Primary Citation:  44 F. Supp. 3d 1009 (D. Idaho 2014)

Date of Decision:  Tuesday, September 9, 2014

Judge Name:  B. LYNN WINMILL, Chief Judge.

Jurisdiction Level:  Federal

more +

Summary: In a ‘hold your tongue and challenge now’ First Amendment challenge to an Idaho statute

that criminalizes undercover investigations and videography at “agricultural production facilities,” the

Animal Legal Defense Fund, as well as various other organizations and individuals, (collectively,

“ALDF”), brought suit. The State defendants, Governor Butch Otter and Attorney General Lawrence

Wasden, moved to dismiss the ALDF's claims. The claims against the Governor were dismissed under

11th Amendment immunity because the ALDF failed to explain the requisite connection between the

Governor and enforcement of section 18–7024. The court also found that since the ALDF failed to

allege a concrete plan to violate subsection (e), it lacked standing to challenge section 18–7042(1)(e)

and the claim in regards to that provision was therefore dismissed. However, the ALDF’s First

Amendment, bare animus Equal Protection, and preemption claims survived the motion to dismiss.

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MEMORANDUM DECISION AND ORDER

INTRODUCTION *1 The Animal Legal Defense Fund, as well as various other organizations and individuals,[FN 1] (collectively, “ALDF”), challenges section

18–7042 of the Idaho Code as unconstitutional. The State defendants, Governor Butch Otter and Attorney General Lawrence Wasden,

move to dismiss ALDF's claims. The Court heard oral argument on June 25, 2014, and took the motion under advisement. For the reasons

set forth below, the Court will dismiss Governor Otter from the lawsuit, as well as ALDF's challenge to section 18–7042(1)(e). All other

claims survive.

SUMMARY Section 18–7042 creates the new crime—“interference with agricultural production.” I.C. § 18–7042(1)(d). It, in essence, criminalizes

undercover investigations and videography at “agricultural production facilities.”

Section 18–7042 raises First Amendment concerns because it restricts protected speech. The State defends the provision as a restriction

on conduct, designed to protect agricultural production facilities against trespass and conversion. The Court acknowledges that the State

has a real and substantial interest in protecting private property. But the First Amendment requires more than the invocation of a

signi�cant government interest; it requires that the restriction's bene�ts be balanced against the burden on protected speech. The State

therefore must justify a need to serve its interest in protecting private property through targeting protected speech. Laws that restrict

more protected speech than necessary violate the First Amendment. Because this question of whether section 18–7042 burdens more

speech than necessary remains unanswered, the Court will not dismiss ALDF's First Amendment claim.

ALDF's Equal Protection claim also survives the State's motion to dismiss. Laws based on bare animus violate the Equal Protection

Clause. ALDF alleges, as a factual matter, that the Idaho legislators acted with animus against animal-rights activists in passing section

18–7042. If ALDF's allegations of animus prove true, the Court must skeptically scrutinize any offered justi�cations for section 18–7042

to determine whether bare animus motivated the legislation or whether the law truly furthers the offered purposes.

Finally, the Court concludes that the State's passage of section 18–7042 presents ALDF with the immediate dilemma of choosing

between complying with section 18–7042 and risking prosecution under the challenged provision by engaging in whistleblower conduct

it says federal law explicitly encourages and protects. ALDF's preemption claims are therefore ripe for review.

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For all these reasons, the Court will allow ALDF's claims to proceed with two exceptions: the claims against Governor Otter and ALDF's

challenge to section 18–7042(1)(e) will be dismissed. The ultimate question of whether section 18–7042 is unconstitutional remains for

another day.

BACKGROUND[FN 2] Section 18–7042 was enacted last year after Mercy for Animals Dairy, a Los Angeles-based animal rights' group, released a video of

workers abusing cows at the Bettencourt Dairies' Dry Creek Dairy in Hansen, Idaho. Mercy for Animals secretly captured the abuse

while conducting an undercover investigation of the dairy. Naerebout Aff. ¶ 7, Dkt. 16–2.[FN 3]The undercover investigator made the

audiovisual recording without the dairy owner's knowledge or consent.Id. And, according to the law's supporters, the investigator “failed

to immediately report to the dairy operator or to local or state authorities the conduct he recorded, allowing additional animal abuse to

occur and depriving the animals of immediate care and treatment.”Id. The investigator gave his recordings to Mercy for Animals, which

provided it to the Idaho State Department of Agriculture. Id.

*2 Mercy for Animals regularly conducts these undercover investigations. To gain access to animal facilities, such as the Dry Creek Dairy,

Mercy for Animals Dairy members misrepresent their true identities, so they can secretly document animal abuse. Once they gain access

to the facility, they make audio and video recordings without the facility owner's consent. Id. Other similar undercover investigations at

factory farms have found workers kicking pigs in the head, spray painting them in the eyes, stomping and throwing chickens and turkeys

like footballs, smashing piglets' heads against concrete �oors, and beating and sexually assaulting pigs with steel gate rods and hard

plastic herding canes. Compl. ¶ 5, Dkt. 1.

In the case of the Dry Creek Dairy, the response was swift. The dairy owners expressed their surprise and sorrow at the abuse and

quickly �red the �ve people shown abusing the animals. The owners also installed surveillance cameras throughout the facility, and

promised to use the Mercy for Animals video as a training tool for their employees.[FN 4]The workers who abused the animals were

prosecuted, and the dairy industry teamed with Idaho schools to offer training in proper care of animals.[FN 5]

While the Dry Creek Dairy owners implemented these changes, the Idaho Dairymen's Association (“IDA”) wrote and sponsored section

18–7042, which criminalizes the types of undercover investigations that exposed the abuse at the Dry Creek Dairy. Naerebout Aff. ¶ 10,

Dkt. 16–2. The Idaho legislature passed the bill quickly, and it was signed by Governor Otter on February 28, 2014.

The law creates the new crime—“interference with agricultural production.” I.C. 18–7042. A person commits the crime of interference

with agricultural production if the person knowingly:

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(a) Is not employed by an agricultural production facility and enters an agricultural production 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 production facility by force, threat, or misrepresentation with the intent to cause

economic or other injury to the facility's operations …

(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; or

(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel,

equipment, buildings or premises.

I.C. § 18–7042(1)(a)-(e). The statute de�nes agricultural production facility as “any structure or land, whether privately or publicly

owned, leased or operated, that is being used for agricultural production.”I.C. § 18–7042(2)(b).

*3 The law's supporters argue that the law is necessary to protect dairy farmers, as well as other agricultural operations in Idaho, from

media persecution and potential �nancial ruin. Naerebout Aff. ¶¶ 7, 8. Dkt. 16–2. On the other side, the law's detractors argue that the

law—by silencing those who wish to publicize abusive, unsafe, and unsanitary practices at agricultural facilities—sti�es public debate

about modern agricultural practices, discourages whistleblowers from coming forward out of fear of prosecution, and values pro�ts over

the public's health and safety. Compl. ¶¶ 1, 14, Dkt. 1.

Challenging the law as unconstitutional, ALDF �led this action, alleging violations of the Free Speech Clause of the First Amendment and

the Equal Protection Clause of the Fourteenth Amendment. Id. ¶¶ 144–68.In addition, ALDF raises preemption claims under the

retaliation prohibition in the False Claims Act, 31 U.S.C. § 3730(h), the employee protection provision of the Food Safety Modernization

Act, 21 U.S.C. § 399d, and the employee protection provision of the Clean Water Act, 33 U.S.C. § 1367. Id. ¶¶ 173–86.

ANALYSIS

1. Governor Otter Is Not a Proper Defendant Under Ex Parte Young.

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The Eleventh Amendment generally bars federal lawsuits against a state. Los Angeles Cty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th

Cir.1992). Yet few rules are without exceptions, and in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme

Court created an exception to this rule. This exception allows suits against state of�cials for the purpose of enjoining the enforcement of

an unconstitutional state statute. Eu, 979 F.2d at 704.

A plaintiff, however, is not free to randomly select a state of�cial to sue in order to challenge an allegedly unconstitutional statute.

Instead, the individual state of�cial sued “must have some connection with the enforcement of the act.”Ex Parte Young, 209 U.S. at 157.

“This connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible

for enforcing the challenged provision will not subject an of�cial to suit.”Eu, 979 F.2d at 704. If a challenged statute is not of the type to

give rise to enforcement proceedings, a state of�cial nonetheless may be named as a defendant under Ex Parte Young if he has

responsibility to “give effect” to the law. See, e.g., id. at 704.

ALDF relies on two provisions to justify applying the Ex Parte Young exception to Governor Otter: sections 19–4522 and 67–802 of the

Idaho Code. However, ALDF fails to explain how either of these provisions provides the requisite connection between the Governor and

enforcement of section 18–7024.

Section 19–4522 is part of the Uniform Criminal Extradition Act of 1936, and it requires the Governor to issue a warrant for the arrest in

another jurisdiction of a person charged with a crime in Idaho if he receives a rendition application meeting the requirements speci�ed in

section 19–4523 of the Idaho Code. The Governor's duty in this regard is entirely ministerial—he must issue such a warrant once he

receives a proper rendition application. And the decision to prosecute and request rendition rests with the involved county's prosecuting

attorney. Simply because the Governor discharges a wholly separate duty under the extradition statute does not give him enforcement

authority over section 18–7042 and does not create a justiciable controversy against the Governor.

*4 Likewise, section 67–802 does not provide the requisite enforcement connection to overcome Eleventh Amendment immunity.

Section 67–802 gives the Governor the discretion to “require the attorney general to aid any prosecuting attorney in the discharge of his

duties.”Such general broad powers to enforce or execute the laws of a state by a state of�cial, alone, are not suf�cient to make the of�cer

a proper party defendant. Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir.1991) (per curiam); S. Pac. Transp. Co. v. Brown, 651 F.2d 613

(9th Cir.1980). Accordingly, the Ex Parte Young exception does not apply to Governor Otter, and he must be dismissed as a defendant.

2. ALDF Has Standing to Challenge Subsections 18–7042(1)(c) But Not Subsection (e).

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The State contests ALDF's standing to challenge subsections (c) and (e) of section 18–7042. It argues that ALDF fails to allege a concrete

plan to violate either of these subsections, which is required to establish standing under Article III. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

First Amendment cases, however, “present unique standing considerations.” Libertarian Party of Los Angeles County v. Bowen, 709 F.3d

867, 870 (9th Cir.2013). The Supreme Court, to avoid the chilling effect of sweeping restrictions, “has endorsed what might be called a

‘hold your tongue and challenge now’ approach rather than requiring litigants to speak �rst and take their chances with the

consequences.”Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir.2003). Consistent with this approach,

when a threatened enforcement effort implicates First Amendment rights, “the inquiry tilts dramatically toward a �nding of standing.”Id.

This means ALDF need only show they engage in a “course of conduct arguably affected with a constitutional interest and that there is a

credible threat that the provision will be invoked against the plaintiff.”Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir.2013).

In this case, ALDF has alleged a concrete plan to violate subsection (c) but not subsection (e).

Subsection (c) prohibits “[o]btain[ing] employment with an agricultural production facility by … misrepresentation with the intent to

cause economic … injury to the facility's … business interests.”The ADLF plans to obtain employment at agricultural facilities with the

intent to expose illegal, inhumane, or unsafe behavior. Compl. ¶¶ 4, 33, 39, 41, 83, 84, 86, 90–94, 97–121. ALDF hopes that exposure of

illegal or abusive behavior will result in boycotts, “food safety recalls, citations for environmental and labor violations, evidence of health

code violations, plant closures, criminal convictions, and civil litigation,”id. ¶ 4—all of which could and likely would cause economic injury

to an alleged violator's business. Because exposure of such conduct could hurt a facility's pro�ts and reputation and economically injure

its business, the Court believes that ALDF has alleged intent to violate subsection (c).

*5 The State responds that ALDF does not allege a speci�c intent to cause economic injury to an agricultural production facility, and

therefore it does not have standing. Such an argument could be used to persuade a jury to acquit ALDF of charges brought under the

statute, but it would not necessarily save it from the prosecution itself. Rarely do prosecutors have direct evidence of intent; instead, they

often must ask a jury to infer intent from a defendant's actions. In this case, because a natural consequence of exposing animal abuse at

an agricultural production facility is economic injury, intent could be implied by the act of exposing abuse. This could subject ALDF to

prosecution under section 18–7042. Therefore, there is a credible threat that the provision will be invoked against ALDF. This is enough

to establish standing to challenge subsection (c).

By contrast, ALDF has not alleged intent to violate subsection (e), which prohibits “caus[ing] physical damage or injury to [an] agricultural

facility's operations.”ALDF does not allege intent to cause “physical” damage or injury. And the Court �nds unpersuasive its argument

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that “physical” only modi�es “damage” and not “injury,” so that a showing of physical injury is not required by the literal language of the

statute.

The “most natural grammatical reading” of the statute is that the initial adjective, “physical,” modi�es both “damage” and “injury.” See, e.g.,

U.S. v. X–Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (holding that the “most natural grammatical reading” of

a statute is that an initial adverb modi�es each verb in a list of elements of a crime). If the legislature intended to sever “physical” from

“injury,” it would have criminalized the act of causing “injury or physical damage.” Why would the legislature use the redundant and

awkward phrasing of “physical damage or physical injury”? The Fourth Amendment, for example, does not protect against “unreasonable

searches and unreasonable seizures.” And the drafters, by putting the modi�er, “unreasonable” in front of only the initial term “searches,”

surely did not intend to prohibit all seizures, unreasonable or not.

In short, the Court cannot give credence to ALDF's argument that “physical” only modi�es “damage.” The Court will therefore dismiss

ALDF's claim with respect to this provision.

3. ALDF Has Stated a Claim under the First Amendment. The State contends that section 18–7042 does not implicate the First Amendment because it is a generally applicable law aimed solely at

wrongful conduct, not speech. Therefore, the State argues, ALDF's First Amendment claim should be dismissed.

A. The Rule of General Applicability Does Not Exempt Section 18–7042 from First Amendment Scrutiny.

Relying primarily on the Supreme Court's decision in Cohen v. Cowles Media Co., 501 U.S. 663, 665, 111 S.Ct. 2513, 115 L.Ed.2d 586

(1991), the State argues that section 18–7042 escapes all First Amendment scrutiny because it “applies to a broad component of Idaho

commerce and regulates conduct not just by individuals or organizations conducting ‘undercover’ or other investigations but by all

persons.”Defs' Opening Br. at 12, Dkt. 12–1. In Cohen, the Supreme Court held that the First Amendment did not prohibit a con�dential

source from recovering damages from a newspaper publisher who made and broke a promise of con�dentiality given in exchange for

information. Id. at 665.In reaching this conclusion, the Court explained, “generally applicable laws do not offend the First Amendment

simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”Id. at 669.

*6 In other words, Cohen teaches that the First Amendment does not grant the press special license to break the law in gathering and

reporting news.Id. The press, just like the general public, must obey copyright laws, Zacchini v. Scripps–Howard Broadcasting Co., 433

U.S. 562, 576–579, 97 S.Ct. 2849, 53 L.Ed.2d 965, and labor laws, Associated Press v. NLRB, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953

(1937), and antitrust laws, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945).Id. Similarly, the press cannot

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escape liability for breaking enforceable promises, Cohen, 501 U.S. at 665, or for committing state common law torts, Dietemann v. Time,

Inc., 449 F.2d 245 (9th Cir.1971).

But this rather unremarkable proposition—that the press must follow generally applicable, content-neutral laws in gathering the news—

does not mean that section 18–7042 automatically escapes First Amendment scrutiny because it is “generally applicable.” To read Cohen

so broadly would essentially eviscerate the First Amendment. As ALDF points out, if this were the rule, a law prohibiting all

demonstrations, for example, would not implicate the First Amendment because it applies to all citizens equally. This simply is not the

law. Even a generally applicable law may be subject to heightened scrutiny under the First Amendment. Turner Broad. Sys., Inc. v. F.C.C.,

512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). This is true even if the law does not directly regulate speech. See, e.g., N.A .A. C.P. v.

Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (interference with business relations); Hustler Magazine,

Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (intentional in�iction of emotional distress); Cohen v. California, 403 U.S.

15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (breach of the peace). The fact that a law applies to all persons is the starting point for

constitutionality, not the ending point.

Moreover, the Court questions whether section 18–7042 even quali�es as a “generally applicable law.” Cohen involved a common tort

claim, promissory estoppel, which was routinely applied to all citizens in similar circumstances. The Supreme Court found “little doubt

that the Minnesota doctrine of promissory estoppel [was] a law of general applicability,” as it did not target or single out the press but

instead generally applied “to the daily transactions of all citizens of Minnesota.”Id. at 670.The Court therefore refused to invalidate the

plaintiff's promissory estoppel claim simply because the defendant was the press. Id.

By contrast, “laws that single out the press, or certain elements thereof, for special treatment pose a particular danger of abuse by the

State, and so are always subject to at least some degree of heightened First Amendment scrutiny.”Turner Broad. System, 512 U.S. at 640

(internal quotation marks and citation omitted). ALDF alleges that section 18–7042 speci�cally targets undercover investigators who

intend to publish videos they make through the press and seeks to suppress speech critical of animal agricultural practices. If ALDF's

allegations prove true—that the law was not designed as a generally applicable prohibition on fraud or trespass or conversion, but rather

as an indirect penalty for criticizing animal agriculture—the Court would have to apply at least some degree of heightened scrutiny.

*7 To further distinguish this case from Cohen, it should also be noted that the plaintiff in Cohen sought only compensatory damages,

which the majority did not view as “a form of punishment.” Cohen, 501 U.S. a 670. The statute at issue here, however, mandates state-

imposed criminal sanctions, which are undeniably a form of punishment. This distinction alone places this case in an entirely different

category than Cohen, and brings it closer to Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), where

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the Supreme Court held that the state cannot make it a crime to publish lawfully obtained, truthful information about a matter of public

signi�cance, “absent a need to further a state interest of the highest order.”Id. at 103.By providing victim-restitution damages for

violations of section 18–7042, the State here may be doing just that and would therefore need to articulate a very compelling state

interest to justify application of criminal penalties.

B. Section 18–7042 Regulates Speech.

The second part of the State's argument—that section 18–7042 regulates only conduct and not speech or other expressive activity—is

likewise unpersuasive. Section 18–7042 bans certain misrepresentations, which is a ban on pure speech, as well as audiovisual

recordings, which is a ban on conduct preparatory to speech. As discussed below, both types of expressive activity, in the context of this

case, are protected speech.

The Court's �nding that the provisions regulate speech is signi�cant because “[r]egulations that inhibit speech must comport with the

requirements of the First Amendment.”Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 817 (9th Cir.2013). To make this determination

whether section 18–7042 violates the First Amendment, the Court must balance the government's interest in protecting private

property against the burden section 18–7042 places on protected speech. How the Court will conduct this balancing depends on a

number of factors, including whether the regulation is content-based or content-neutral. Id.

Below, the Court addresses whether section 18–7042 implicates protected speech and is therefore subject to First Amendment scrutiny.

The Court also addresses whether section 18–7042 is content-based or content-neutral. The Court, however, does not reach, through

this motion to dismiss, the ultimate question of whether Idaho's interest in protecting private property justi�es its restriction on

protected speech.

(1) Misrepresentation

Section 18–7042 makes it a crime for a person to (1) gain access, (2) obtain records from, or (3) employment with agricultural production

facilities through “force, threat, misrepresentation, or trespass.” I.C. § 18–7042(1)(a)-(c). ALDF challenges these provisions, which ban

certain