Contributor, The Volokh Conspiracy

Monday, a federal district judge concluded that Idaho’s “ag-gag” law violated the First Amendment (Animal Legal Defense Fund v. Otter). The statute, Idaho Code § 18-7042, provides, in relevant part,

A person commits the crime of interference with agricultural production if the person knowingly:

(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, livestock, crops, owners, personnel, equipment, buildings, premises, business interests or customers;

(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 ….

In addition to any other penalty imposed for a violation of this section, the court shall require any person [found guilty] … to make restitution to the victim of the offense in accordance with the terms of section 19-5304, Idaho Code … [and] in an amount equal to twice the value of the damage resulting from the violation of this section.

The court offered several different rationales for its action. A few thoughts:

1. The court reasoned that the statute targeted recordings of “the conduct of an agricultural production facility’s operations,” and was therefore unconstitutionally content-based. As the court pointed out, there are already general laws barring “steal[ing] documents,” “trespass,” and “fraud.” (Apropos the recent discussion of recordings that allegedly breach nondisclosure agreements, the general law of breach of contract could be added to the list, and likely also general laws that ban hidden recording of private communications.) But laws that target a particular subject matter of speech generally have to pass strict scrutiny (i.e., be narrowly tailored to a compelling government interest). Likewise, the court concluded, laws that ban recording of a particular subject matter of speech generally have to pass strict scrutiny as well:

[Section] 18-7042 … imposes disproportionate sanctions for harms arising from undercover investigations that target the agricultural industry. All of these facts suggest that § 18-7042 was designed to suppress speech critical of the agricultural industry, and not protect private property as the State claims.

And the court concluded that this law wasn’t narrowly tailored to a compelling government interest, partly because content-neutral alternatives (such as general laws related to trespass, fraud, and the like) were available.

I’m not positive whether strict scrutiny would be the right test, since the First Amendment law related to restrictions on videorecording is still not settled. But I tend to agree that the argument likely would have to show some special justification for targeting this particular sort of videorecording, and I don’t see how it can.

Interestingly, abortion came up in this decision, as it of course comes up in the recent Center for Medical Progress controversies:

The State suggests that the recording prohibition is content neutral because it does not regulate speech based on what is said (i.e. content) but instead on where it is said, i.e. at an agricultural production facility. In making this argument, the State relies on McCullen v. Coakley, 134 S.Ct. 2518 (2014).

In McCullen, the Supreme Court reaffirmed its holding in Hill v. Colorado, 530 U.S. 703 (2000), that buffer zones outside of abortion clinics are content neutral. The Court reasoned that the challenged statute “would be content based if it required enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred.” But, according to the Court, it did not. “Whether petitioners violate the Act depends not on what they say … but simply on where they say it.” “Indeed,” noted the Court, “petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”

But § 18-7042 differs significantly from the statute upheld in McCullen. Unlike the statute in McCullen, a person cannot violate § 18-7042 merely by standing in an agricultural production facility. In fact, a person, such as an employee, would not violate § 18-7042 if he or she stood in an agricultural production facility and surreptitiously filmed the agricultural facility owner having a private conversation with his spouse.

This same employee, however, could be prosecuted under § 18-7042, and face up to a year in jail, and be liable for reputational harm to the owner, if the employee, without the owner’s consent, filmed his fellow workers repeatedly beating, kicking, and jumping on cows, or using a moving tractor to drag a cow on the floor by a chain attached to her neck. In other words, § 18-7042 is nothing like the statute in McCullen because law enforcement authorities would need to view suspect video or audiotape to determine whether a particular recording violates the statute. The recording prohibition is therefore a classic example of a content-based restriction.

The court also reasoned that,

Moreover, … a law can be content based if the underlying purpose of the law is to suppress particular ideas. Indeed, “the government’s purpose is the controlling consideration” in determining content neutrality…. [A] review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.

I’m not sure whether this focus on the legislative history is permissible, given United States v. O’Brien, which generally rejected such reliance on legislative history in First Amendment cases:

What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a “wiser” speech about it.

Still, as the court pointed out, the law appears to be facially content-based, and seemingly much more closely tailored to “suppress[ing] speech critical of the agricultural industry” than to “protect[ing] private property as the State claims.” This strikes me as sufficient to find that the law is content-based, even without relying on the specific statements by proponents of the law.

2. The court also reasoned that many of the misrepresentations that the statute forbids are constitutionally protected. The court acknowledged that fraud is generally constitutionally unprotected, but the court reasoned that, “the plurality in United States v. Alvarez” — the case that struck down the Stolen Valor Act and held that some knowing falsehoods are indeed constitutionally protected — “held that the government may criminalize false statements only when those statements themselves cause a ‘legally cognizable harm.’” And in this case,

[T]he State has done nothing to show the lies it seeks to prohibit cause any legally cognizable harm. Section 18-7042 does not limit its misrepresentation prohibition to false speech amounting to actionable fraud, defamation, conversion, or trespass. Rather, it sweeps into its prohibition all lies used to gain access to property, records, or employment — regardless of whether the misrepresentations themselves cause any material harm.

But I don’t think that’s right. The Alvarez plurality and the concurrence did seem to generally require that knowing lies, to be restricted, cause some sort of “specific harm to identifiable victims” (to quote the concurrence). But being duped into hiring someone, or into opening your property to someone, based on affirmative lies would indeed count as a specific harm, even in the absence of physical property damage caused by the employee or visitor.

Consider, for instance, going onto someone’s property by consent when the consent has been gotten by intentional misrepresentation. State law could treat this as tortious trespass, and often does (even if state law could also sometimes choose not to treat it as a tort, for instance if the state wants to leave latitude for undercover newsgathering). The intrusion on someone’s property is itself a harm, whether the intruder gets access to the property without consent — or with consent procured by lying. And if such actions can constitutionally be treated as a tort, they can constitutionally be treated as a crime, too.

The court acknowledged that,

It is true that the Alvarez plurality at one point said those false claims ‘made to … secure moneys or other valuable considerations, say offers of employment,’ are not protected. But the State has submitted no evidence that the lies an undercover investigator might tell or the omissions an investigator might make to gain access or secure employment at an agricultural production facility are made for the purpose of material gain.

Rather, undercover investigators tell such lies in order to find evidence of animal abuse and expose any abuse or other bad practices the investigator discovers. Thus, the proposed misrepresentations at issue here do not fit the Alvarez plurality’s description of unprotected lies because they would not be used to gain a material advantage. Id. (holding Stolen Valor Act violated First Amendment because it prohibited lies “without regard to whether the lie was made for the purpose of material gain”).

But I don’t think that the focus on the liar’s motive is the right approach, despite the quote from the Stolen Valor Act plurality. (The plurality wasn’t setting forth a categorical rule that lies without purpose of material gain are constitutionally protected; indeed, the plurality seemed to acknowledge that lies might be unprotected when they produce “legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation” — invasion of privacy and vexatious litigation often don’t involve purpose of material gain.)

Whether a prospective employee’s lies are told out of a motive to make money, or out of a motive to get employment so he could get in the facility and videotape the contents, the employer is still being defrauded. And a public-spirited motive for getting a salary under false pretenses, or getting access to property under false pretenses, does not, I think, give a First Amendment immunity to the fraud.

3. Finally, the court at times stresses the value of undercover investigations, even ones accomplished through lying:

[T]he lies used to facilitate undercover investigations actually advance core First Amendment values by exposing misconduct to the public eye and facilitating dialogue on issues of considerable public interest. This type of politically-salient speech is precisely the type of speech the First Amendment was designed to protect….

Audio and visual evidence is a uniquely persuasive means of conveying a message, and it can vindicate an undercover investigator or whistleblower who is otherwise disbelieved or ignored. Prohibiting undercover investigators or whistleblowers from recording an agricultural facility’s operations inevitably suppresses a key type of speech because it limits the information that might later be published or broadcast….

Nor is the Court persuaded by the State’s argument that § 18-7042 is narrowly tailored to protect private property because it only seeks to limit the capture of audiovisual recordings in a private forum…. First and foremost, the State completely ignores that food production is not a private matter. As already discussed, animal agriculture is a heavily-regulated industry and food production and safety are matters of the utmost public concern. “Speech on matters of public concern … is at the heart of the First Amendment’s protection.” …

To the extent that this explains why a content-based restriction on lies aimed at gathering information about “the conduct of an agricultural production facility’s operations” can’t be justified under strict scrutiny, I think that’s fine.

But to the extent that the court is suggesting that there’s a First Amendment right to lie to videorecord on private property, I think that can’t be right (and indeed that seems inconsistent with the court’s assurance that businesses remain protected by general bans on trespass and fraud). Lots of things would make investigations easier: breaking into people’s offices; breaking into people’s computers; impersonating tech support to get people to turn over their passwords; impersonating police officers or utility employees to sneak in with hidden cameras. But I don’t think that this means that investigators — whether from TV stations or political advocacy groups — have a First Amendment right to do these things. Likewise, I don’t think they should have a First Amendment right to engage in other deceptions in order to get access to people’s property.

* * *

In any event, presumably the decision will be appealed; it will be interesting to see which parts of the analysis the Ninth Circuit agrees with, which it disagrees with, and which it concludes need not be reached. My guess is that the Ninth Circuit will affirm the district court’s decision, and conclude that the law was unconstitutionally content-based — but will also reaffirm that more neutral laws are constitutional. And those permissible neutral laws would likely include, I think, contract law, as well as general bans on recording confidential communications, which are involved in the controversies over the Center for Medical Progress’s abortion-related videos.