WHY CAN'T I KNOW HOW THE SAUSAGE IS MADE?: HOW AG-GAG STATUTES THREATEN ANIMAL WELFARE GROUPS AND THE FIRST AMENDMENT
Daniel L. Sternberga1
Copyright (c) 2015 Yeshiva University; Daniel L. Sternberg REPRINTED WITH PERMISSION
Private property rights are not absolute.1 Yet based on the supposition that “a man's home is his castle,”2 beginning in the early 1990s, several state legislatures passed new and far reaching criminal statutes aimed at preventing the public from learning about industrial agriculture operations with regards to matters of food safety and animal welfare. Following from the idea that industrial agriculture operations deserve “special protections that ordinary law does not afford,”3 these enhanced criminal trespass statutes expanded upon the “legal concept that private enterprise has a right to conduct its business mostly in private.”4 Specifically, the objective of these farm-protection or agriculture interference statutes (“Ag-Gag”) is to protect private property rights from intrusions - mainly from newsgathering organizations.
Ag-Gag statutes criminalize a variety of activities aimed at protecting industrial agriculture operations from food safety and animal welfare groups, undercover investigators, and workplace whistleblowers.5 *627 Specifically, these statutes criminalize such conduct as entering a farm to take pictures or record video; applying for employment under false pretenses; and obtaining employment with the intent of recording the farm operation.6 A survey of state legislatures reveals that as the technological tools and tactics available to those attempting to surreptitiously film or record agriculture operations continue to evolve, so too do the Ag-Gag statutes aimed at curtailing these investigations.7 Because Ag-Gag statutes seem to create a conflict between First Amendment rights and private property rights, the statutes present an important clash of constitutional values.
The purpose of this Note is to investigate this clash and analyze the constitutionality of the five Ag-Gag statutes that specifically target surreptitious investigative techniques. Part I provides an overview of these state Ag-Gag statutes enacted around the United States. Part II summarizes the first constitutional challenge to an Ag-Gag statute - Animal Legal Def. Fund v. Hebert, which is pending in the U.S. District Court for the District of Utah. Part III analyzes the constitutionality of the provisions of Ag-Gag statutes that (a) provide a cause of action for civil restitution for the actual and consequential damages resulting from a violation of the statutes; or (b) implicate third parties by triggering state criminal laws such as aiding and abetting or conspiracy. Finally, Part IV summarizes the author's conclusions about the extent to which the First Amendment shields journalists and newsgathering organizations from prosecution under an Ag-Gag statute.
I. WHAT CONSTITUTES AN AG-GAG STATUTE: PAST MODELS & PRESENT VERSIONS
At the turn of the twentieth century, investigative journalist Upton Sinclair went undercover in Chicago's meatpacking plants to document the working-class realities recent immigrants faced living in this country's major urban cities.8 Sinclair's account of his time working in the meatpacking plants, The Jungle, subsequently exposed the nation to the *628 conditions present in the industry: abusive labor practices, animal cruelty, and unsanitary conditions.9 Sinclair's portrayal of the industry actually paved the way for the passage of federal legislation aimed at reforming and regulating slaughterhouses and the meatpacking industry.10 The following century, although journalists and newsgathering organizations continue to go undercover in order “to spur enforcement, legislative reform, and debate . . . . [T]he animal agriculture industry began to push legislative efforts to criminalize such investigations.”11
A. Kansas, Montana, & North Dakota: Ag-Gag Version 1.0
Beginning with Kansas in 1990,12 followed the next year by Montana13 and North Dakota,14 these three states enacted statutes to provide special protections to their local agriculture and livestock industries. While criminal trespass laws were already in effect in these states,15 the legislatures went one step further to create advanced criminal trespass restrictions.
i. Activity Covered under Ag-Gag Version 1.0 Statutes
Under the Kansas Ag-Gag statute, “[n]o person shall, without the effective consent of the owner and with the intent to damage the enterprise . . . enter an animal facility to take pictures by photograph, video camera or by any other means.”16 The Montana Ag-Gag statute also specifically criminalizes unauthorized filming or recording,17 but it differs from the Kansas Ag-Gag statute in one significant way.18 The Montana Ag- *629 Gag statute makes it illegal for “[a] person who does not have the effective consent of the owner and who intends to damage the enterprise conducted at an animal facility . . . to enter an animal facility to take pictures by photograph, video camera, or other means with the intent to commit criminal defamation.”19 In comparison to the Kansas Ag-Gag statute, the required defamatory intent creates a narrower scope of prohibited conduct under the Montana Ag-Gag Statute.
The North Dakota Ag-Gag statute, however, unlike both the Kansas and Montana statutes which both require intent,20 completely omits reference to any intent necessary to trigger the criminal statute.21 The North Dakota Ag-Gag statute criminalizes entering an agriculture facility “without the effective consent of the owner . . . and us[ing] or attempt[ing] to use a camera, video recorder, or any other video or audio recording equipment.”22 This broader language would implicate a much more expansive list of activities than either the Kansas or Montana Ag-Gag statutes.
While these three Ag-Gag statutes differ regarding the type of activity covered within the purview of the statute, the Kansas, Montana, and North Dakota Ag-Gag statutes define “animal facility” in nearly identical terms. The statutes define an “animal facility” as including any vehicle, building, structure, research facility or premises where an animal is kept, handled, housed, exhibited, bred or offered for sale.23
ii. Penalties for Violating Ag-Gag Version 1.0 Statutes
The penalty for committing a prohibited act under the Kansas Ag-Gag statute is either a misdemeanor or a felony - depending on the level of damage that results from the violation.24 In particular, the unauthorized act of “enter[ing] an animal facility to take pictures by photograph [or] video camera”25 may result in a fine up to $2,500 and one *630 year in jail.26 A person convicted of violating the unauthorized filming and recording provision under the Montana Ag-Gag statute can be sentenced to a state prison term or a fine, or both. A violation that causes less than $500 in damage to the animal facility is punishable by a jail term up to six months in length, a $500 fine, or both.27 If the violation causes over $500 in damage, then the person convicted of violating the unauthorized filming and recording provision could be sentenced to up to ten years in prison, fined up to $50,000, or both.28 Under the North Dakota Ag-Gag statute, which by comparison to the Montana statute is much less punitive,29 a person who violates the unauthorized filming and recording provision is guilty of a misdemeanor that is punishable by imprisonment up to thirty days, a fine up to $1,500, or both.30
The potential criminal sanctions for violating the Kansas, Montana, and North Dakota Ag-Gag statutes differ considerably. Each Ag-Gag statute, however, created a nearly identical private civil right of action to recover actual and consequential damages. This allows a person damaged by a violation of the Ag-Gag statute to recover up to treble damages against the person who violated the Ag-Gag statute.31 For example, the civil penalty provision under the Kansas Ag-Gag statute provides that:
(a) Any person who has been damaged by reason of a violation of [the Ag-Gag statute], . . . may bring an action . . . against the person causing the damage to recover:
(1) An amount equal to three times all actual and consequential damages. Actual and consequential damages shall include the *631damages involving production, . . . replacement and crop or animal development costs directly related to the field crop or animal that has been damaged or destroyed; and
(2) court costs and reasonable attorney fees.
(b) Nothing in this act shall be construed to affect any other rights of a person who has been damaged by reason of a violation of this act. Subsection (a) shall not be construed to limit the exercise of any such rights arising out of or relating to a violation of [the Ag-Gag statute].32
Whereas the Kansas Ag-Gag statute limits damages under the civil penalty to those “costs directly related to the field crop or animal that [was] damaged or destroyed,”33 the Montana and North Dakota Ag-Gag statutes provide no such limitation regarding the scope of the damages recoverable under the civil penalty provision.34 Consequently, it is not clear from these statutes' definitions whether the civil damages provisions allow for recovery of “actual and consequential damages” in only the most literal sense - vandalizing farm equipment or releasing farm animals, for example - or if the civil damages penalty could include those costs that are more detached from the physical, concrete act that violated the Ag-Gag statute. In other words, one cannot be certain whether, as a result of an unlawfully obtained recording, a drop in a stock price or loss of a contract with a retailer would qualify under the civil damages provision.
Because there are no reported prosecutions under the Kansas, Montana, or North Dakota Ag-Gag statutes,35 it remains unclear how a *632 court would interpret the civil penalty provision. It seems reasonable, however, that a court could determine that the financial harm that inevitably results from negative publicity due to an undercover investigation conducted in violation of an Ag-Gag statute is within the purview of the civil damages provision.
B. Iowa and Utah: Ag-Gag Version 2.0
Between 1991 and 2012 no states passed Ag-Gag bills into law.36 This twenty-one year drought ended in March 2012 when Iowa and Utah, within two and a half weeks of each other, passed Ag-Gag legislation into law.37 Although the Iowa and Utah Ag-Gag statutes differ with regards to the scope of the activities targeted by the statutes, both states took unprecedented approaches to directly criminalize the tactics at the very heart of many successful undercover investigations: obtaining access to the investigatory target under false pretenses, working undercover in order to corroborate and film the alleged conduct, and widely publicizing the more salacious recordings uncovered during the investigation. Unlike Ag-Gag Version 1.0 statutes that criminalize only the act of surreptitiously filming or recording an agriculture operation,38 the Iowa and Utah Ag-Gag statutes criminalize the acts of “[a]gricultural production facility fraud”39 and “[a]gricultural operation interference,”40 which are considerably broader in scope.
The Iowa Ag-Gag statute, as mentioned above, creates a new crime called “agricultural production facility fraud.”41 As the name suggests, the Iowa Ag-Gag statute takes direct aim at spurious statements made during the agriculture operation's application and hiring process. An individual commits “agricultural production facility fraud” under the Iowa Ag-Gag statue if they “obtain access . . . under false pretenses [or] [m]ake a false statement or representation as part of an application [for employment at an agriculture operation] . . . with the intent of committing an act not authorized by the owner.”42 The first *633 conviction under the Iowa Ag-Gag statute is a serious misdemeanor.43 A subsequent conviction is an aggravated misdemeanor.44
The Utah legislature, like their Iowa counterpart, also created a new crime. The Utah Ag-Gag statute created the crime of “[a]griculture operation interference.”45 The Utah statute, which is the most recently passed Ag-Gag statute, takes the most aggressive approach to restrain and criminalize undercover investigators' tactics. Informed by the Ag-Gag progenitors from other states, the Utah legislature incorporated and expanded upon many of the provisions highlighted in the Ag-Gag statutes discussed above. In particular, the Utah Ag-Gag statute follows the Kansas, Montana, and North Dakota examples that specifically criminalize filming or recording without the owner's consent. The Utah Ag-Gag statute further criminalizes the act of “intentionally . . . leaving behind a recording device.”46 This added provision is likely in response to access to cheap and miniaturized cameras that have both audio and video recording capabilities.47
The Utah Ag-Gag statute additionally criminalizes “obtain[ing] access to an agricultural operation under false pretenses”48 and “apply[ing] for employment at an agricultural operation with the intent to record an image of, or sound from, the agricultural operation.”49 The penalty for violating the Utah Ag-Gag statute escalates contingent upon which provision of the statute is violated. For example, obtaining access under false pretenses or applying for employment with the intent of filming or recording, a class B misdemeanor under the Ag-Gag statute,50 is punishable by up to six months in jail51 and a fine not to exceed *634 $1,000.52Leaving behind a recording device without the owner's consent, a class A misdemeanor53 by contrast, carries the heaviest penalty -- a fine up to $2,50054 and one year in jail,55 which is actually the same penalty as assaulting a police officer.56
i. Third-Party Liability Under Ag-Gag Version 2.0 Statutes
Unlike the Ag-Gag statutes passed in Kansas, Montana, and North Dakota that do not explicitly bring third parties within the purview of the statute,57 the Iowa Ag-Gag statute overtly imposes vicarious criminal liability on third-party individuals and organizations.58Under the Iowa Ag-Gag statute, “[w]hen two or more persons, acting in concert, [conspire to commit, or] knowingly participate in committing agricultural production facility fraud . . . each person is responsible for the acts of the other person.”59 Third-party individuals and organizations, therefore, would be subject to liability under both the Iowa Joint Criminal Conduct60 and Conspiracy statutes.61
Although the text of the Utah Ag-Gag statute does not address third-party criminal liability, it is logical to conclude that criminal accomplice liability could be imposed upon a person or organization that “solicits, requests, . . . encourages, or . . . aids another person to engage in conduct which . . . “62 violates the Ag-Gag statute. It also would be possible to conclude that an individual or organization could be “guilty of conspiracy when . . ., intending that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of the conduct”63 that violates the Utah Ag-Gag statute.
In addition to triggering criminal liability against those that aid in the violation of the Iowa and Utah Ag-Gag statutes, restitution is provided *635 for under both states' criminal codes.64 Victims of a violation of either Ag-Gag statute, therefore, have a private right of action to recover damages.65 Consequently, agricultural operations targeted by an unlawful undercover investigation could seek to recover against the investigator, as well as their support and distribution networks, for lost profits that resulted from an investigation conducted in violation of Iowa or Utah's Ag-Gag statute.66
C. The New Normal
Where the large-scale agriculture industry may have once employed the strategy of merely “pushing back against journalists and whistleblowers after their videos ignited public outrage,”67 in the 1990s, the industry began “looking for a way to [more proactively] prevent such exposure in the first place.”68 Following the drafting of model legislation and lobbying by the “industry-backed American Legislative Exchange Council,”69 the introduction of Ag-Gag statutes across state legislatures truly proliferated.70
Regarding the intent and effect of these state Ag-Gag statutes, which criminalize obtaining, and possibly publishing, surreptitiously recorded video and photography,71 the views could not be more divergent. The views of those who oppose Ag-Gag statutes are articulated *636 well by Amanda Hitt,72 director of the Government Accountability Project's Food Integrity Campaign.73 In Hitt's opinion, not only do Ag-Gag statutes constrain workers from reporting on animal abuse, but Ag-Gag statutes also function to “stop [both] environmental whistleblowing, . . . [and] worker's rights whistleblowing.”74 In Hitt's opinion, this essentially “give[s] the power to the [agriculture] industry to completely self-regulate.”75
Cindy Cunningham, the Assistant Vice President for Communications at the National Pork Board,76 however, sees the legal protections provided by Ag-Gag statutes as simply protecting basic personal privacy rights.77 Cunningham likens the act of an undercover investigator targeting an agriculture operation to “somebody walking into your living room and taking a video. If you're at a cocktail party and somebody shoots video of you from behind a candle -- like they did to Mitt Romney -- is that legitimate?”78 Like Cunningham, Ag-Gag proponents have articulated a similar metaphor equating the privacy rights of industrial agriculture operations to those same privacy rights reserved for individuals within their home.79
*637 While a timely resolution of these two competing paradigms does not seem likely, the first constitutional challenge to an Ag-Gag statute, which is currently pending in Utah, will provide insight into how a court could balance the legitimate, yet competing interests identified by both Amanda Hitt and Cindy Cunningham.
II. ANIMAL LEGAL DEF. FUND V. HEBERT: THE FIRST CONSTITUTIONAL CHALLENGE TO AN AG-GAG STATUTE
On February 8, 2013, in Draper, Utah, while standing on public property, Amy Meyer used her cell phone to film the Dale T. Smith and Sons Meat Packing Company.80 Meyer never entered private property, but recorded from an adjacent right-of-way.81 The slaughterhouse, however, contacted the local police after noting possible trespassers.82 Subsequently, Meyer was questioned by the police and charged with violating the Utah Ag-Gag statute.83 Two months later, after Draper prosecutors finally determined that Meyer was actually recording while on public property, the case against her was dismissed.84 While the charges against Meyer were ultimately dropped, this was the first case to be prosecuted under Utah's Ag-Gag statute,85 as well as the first use of an Ag-Gag statute in the country.86 Thinking that “once on the books, [Ag-Gag statutes could] lead law enforcement to ‘file charges first and ask questions later,”’87 Amy Meyer joined national non-profit animal protection groups, journalists, academics, and investigators to challenge the constitutionality of Utah Code Ann. § 76-6-112, the Utah Ag-Gag statute. The case, Animal Legal Def. Fund v. Hebert,88 currently pending in U.S. District Court for the District of Utah before Judge Robert J. *638 Shelby,89 will likely provide a blueprint for future challenges to, and defenses of, Ag-Gag statutes across the country.
A. Background on the Constitutional Challenge to the Utah Ag-Gag Statute
The plaintiffs -- national non-profits Animal Legal Defense Fund (“ALDF”) and People for the Ethical Treatment of Animals (“PETA”), media outlet CounterPunch, and various environmental and animal rights academics, activists, investigators and journalists -- filed a lawsuit in July 2013 challenging Utah's Ag-Gag statute as an unconstitutional violation of the First Amendment, the Fourteenth Amendment, and the Supremacy Clause of the U.S. Constitution.90 The purpose of the lawsuit, according to the plaintiffs, is to protect the constitutional rights of whistleblowers, journalists, and activists who investigate the animal agriculture industry.91 In general, the plaintiffs aim to protect these individuals - and those similarly situated - from prosecution under the Utah Ag-Gag statute by having the statute declared unconstitutional.92
The plaintiffs seek injunctive and declaratory relief based on three independent constitutional arguments. The plaintiffs allege that (1) the Utah Ag-Gag statute discriminates on the basis of content and viewpoint of speech in violation of their First Amendment right to free speech;93 (2) the statute violates the Fourteenth Amendment right to equal protection under the law and serves no legitimate, non-animus-based purpose because the statute specifically and exclusively targets food safety and animal welfare groups;94 and (3) the statute conflicts with and frustrates the purpose of the federal False Claims Act,95 and is thus preempted.96
Citing “the long and celebrated history of [undercover investigators] . . . reporting on industrial agriculture conditions so as to spur enforcement, *639 legislative reform, and debate,”97 the plaintiffs allege that the purpose of the Utah Ag-Gag statute is “to impair [the] public debate about animal welfare, food safety, and labor issues.”98 The plaintiffs further allege that the primary purpose of the Utah Ag-Gag statute is to “stifle political debate about modern animal agriculture by criminalizing the creation of videos and photos from within the industry.”99 The plaintiffs claim that the Utah Ag-Gag statute creates a conflict between “[the] increased public interest in safe and ethically produced food” and “sheltering industries from scrutiny regarding food safety, animal welfare, and other related concerns.”100
One of the plaintiff's attorneys, Justin Marceau,101 a constitutional law professor at the University of Denver,102 is convinced that the Utah Ag-Gag statute was intended to limit the publicizing of abuse at industrial agriculture facilities:
The reality is we celebrate undercover investigations in [many] contexts; if somebody gets into a [restaurant's] kitchen and shows there's gross things going on, we're . . . happy to learn that . . . Here we have the agriculture industry saying, ‘We're special, we shouldn't be subjected to this investigative reporting treatment.’103
Jeff Kerr, the general counsel for PETA, which is also a plaintiff, characterized the Utah Ag-Gag statute as follows,
The Utah legislature should be passing laws to put cameras in slaughterhouses and factory farms to expose and end abuse, as opposed to keeping it secret to protect their profits . . . . [The Utah Ag-Gag statute has] implications for union organizers and exposing other kinds of abuses that may go on behind closed doors . . . The law as drafted would prevent someone from filming bad employment practices or unsafe working conditions on factory farms and slaughterhouses.104
*640 Will Potter, who first reported the February 2013 prosecution of Amy Meyer, believes that the Utah Ag-Gag statute forces him “to choose between not reporting a story that is of national concern and putting a source in jail.”105
B. Plaintiffs' Specific Constitutional Arguments
On the theory that the following injuries result directly from the Utah Ag-Gag statute, the complaint alleges that each plaintiff satisfies Article III standing. With regard to ALDF, PETA, Hauff, and Meyer, the complaint alleges that each has “refrained from engaging in constitutionally-protected expressive activity because of a credible threat of prosecution under the statute.”106 Hauff also alleges to have “suffered a financial injury”107 because the statute has prevented him from “employment opportunities as an investigations consultant.”108 Essentially, these plaintiffs allege that the Utah Ag-Gag statute “effectively criminalizes any investigation strategy that would reveal the conditions inside an animal production facility.”109 CounterPunch, McWilliams, Potter, and Fruhwirth allege to have suffered “injuries on the theory that the [Utah] Ag-Gag statute undermines their access to information crucial to their journalistic and academic endeavors.”110 In particular, the Utah Ag-Gag statute allegedly eliminates their access to information vital to their careers.
In response to Utah's motion to dismiss, filed October 2013, the plaintiffs further developed their equal protection claim. The plaintiffs allege that the claim survives this stage of the litigation for two reasons. First, because the law “interferes with the exercise of . . . [the] fundamental right [to free speech],”111 and unconstitutionally “differentiates *641 between whistleblowers generally, and whistleblowers in the agricultural industry,”112 it must be proven that the Utah Ag-Gag statute survives strict scrutiny. Second, the plaintiffs argue that the complaint alleges sufficient facts in support of their claim that the Ag-Gag statute fails because it is motivated by unconstitutional animus.113 In support of this alternative Equal Protection argument, the plaintiffs allege that “the [Ag-Gag statutes'] under-inclusivity in protecting property rights . . . . exposes the law's true motive: to silence critics of animal agriculture.”114According to the plaintiffs, the Ag-Gag statute essentially “creates a distinction between those who seek to expose corruption or crimes in meat or dairy industries, and those who seek to do the same in any other industry, for example, restaurants or childcare facilities.”115
The plaintiffs also further developed their argument that the Utah Ag-Gag statute undermines the purpose of the False Claims Act116 (“FCA”) and is thus preempted by the Supremacy Clause.117 The FCA empowers private citizens, who discover evidence of fraud against the federal government, to bring a private action on behalf of the United States against the party committing the fraud.118 The plaintiffs therefore rely on the fact that Utah slaughterhouses contract with the federal government through the National School Lunch Program119 to argue that, “[the Utah Ag-Gag statute] interferes with the methods by which the federal statute was designed to reach [its] goal”120 -- i.e., the collection of evidence of fraud by citizens.
C. The State's Rebuttal
On October 11, 2013, Utah moved to dismiss the complaint for failure to state a claim upon which relief can be granted.121Specifically, Utah argues that the plaintiffs do not have standing to challenge the Utah Ag-Gag statute. In the alternative, the state argues that the plaintiffs *642 fail to plead facts sufficient to show that the Ag-Gag statute lacks a legitimate purpose. Furthermore, Utah argues that the Ag-Gag statute does not conflict with the False Claims Act, thus the Ag-Gag statute is not preempted by the Supremacy Clause.122 The motion to dismiss, however, fails to address the plaintiffs' First Amendment challenge alleging that the Ag-Gag statute is discriminatory on the basis of content and viewpoint.123
In support of their argument that the plaintiffs lack standing to challenge the Ag-Gag statute, Utah alleges that the plaintiffs fail to establish that there is a real and immediate threat of criminal prosecution under the statute.124 With regard to the plaintiffs who are academics and reporters, Utah claims that they fail to allege conduct that would actually violate the Ag-Gag statute.125 “The statute does not criminalize the distribution [or possession] of information acquired at [an agriculture] operation, even if that information is gathered in violation of the [Ag-Gag] statute.”126 Utah contends that acquiring, disseminating, or reporting on information obtained in violation of the Ag-Gag statute, therefore, would not run afoul of the statute.127
PETA, ALDF, and Daniel Hauff alleged plans or an interest to conduct an undercover investigation of a Utah agriculture operation.128 Utah, however, disputes that these parties have Article III standing to challenge the Ag-Gag statute for two reasons.129 First, according to Utah, merely planning the type of undercover investigation that would violate the Ag-Gag statute is insufficient to trigger the statute. In support of this proposition, Utah asserts that
Plaintiffs can take an investigation all the way through the planning stage and even somewhat into the implementation stage, by identifying the specific operation they intend to investigate, the person they plan to use as an undercover operative, and go as far as the property *643 line of the operation they have targeted before violating the law.130
Utah asserts that “[t]he statute only criminalizes behavior that takes place on the property of an agricultural operation.”131 As for Amy Meyer, although Utah concedes that her prosecution was erroneous because she did not actually violate the Ag-Gag statute, Utah argues that she lacks Article III standing because her injury resulted merely from an “improper exercise of government authority - not the Ag-Gag statute.”132
The second reason Utah disputes that the parties have standing is that that there is no interrelationship between the Ag-Gag statute and other criminal statutes, such as “aiding and abetting”133 or “conspiracy.”134 Specifically, Utah claims that despite the plaintiffs' allegation that “the threat of criminal liability extends [to] . . . even . . . journalist[s] who contracted with an investigator to obtain . . . images [in violation of the Ag-Gag statute],”135 the plaintiffs “cannot show an immediate, credible threat of prosecution,”136 based upon this mere concern about liability.
Utah also moved to dismiss the plaintiffs' cause of action that alleges the Ag-Gag statute is based on animus and impermissibly discriminates in violation of the Equal Protection Clause.137 Utah first refutes that the Ag-Gag statute is even based on animus.138Recognizing that “the record contains statements by certain legislators that undoubtedly express a negative view toward particular organizations,”139 Utah relies on City of Mobile v. Bolden140 for the proposition that “a political decision that is supported by valid and articulable justifications cannot be invalid simply because some participants in the decision-making process were *644 motivated by a purpose to disadvantage a minority group.”141
Utah relies further on U.S. Dep't of Agric. v. Moreno,142 to assert that, “[even] where animus is alleged . . .”143 the Ag-Gag statute survives constitutional review because it is subject merely to rational basis review, since the plaintiffs “do not assert that they are a suspect or a quasi-suspect class.”144 Utah argues that the Ag-Gag statute survives both prongs of rationality review:
The challenged [Ag-Gag] statute does little more than provide protection to an industry and a small group of people who have been specifically targeted for surreptitious access and non-permitted recording . . . . The threat to this industry is clearly established by the allegations of Plaintiffs' Complaint and the government has acted to counter that threat in a very reserved and cautious way.145
Accordingly, Utah contends that the Ag-Gag statute does not violate the Fourteenth Amendment because the government interests that motivated the passage of the statute “are legitimate and at least rationally related to the proscribed conduct . . . [and therefore,] within the bounds of equal protection.”146 In particular, Utah asserts that “[t]he law has a number of rational, non-discriminatory motivations, such as safety of the workplace, protection of private property rights, maintaining integrity of the workforce, and protection against fraud.”147
Lastly, Utah contends that the Ag-Gag statute is not preempted by the False Claims Act because the standard that “[t]he conflicting state law must ‘thwart the federal policy in a material way”’148 is not satisfied.149 The basis for this argument, according to Utah, is that criminalization of fraud and trespass through the Ag-Gag statute does not implicate the whistleblower protections outlined in the False Claims Act.150 Based on Utah's interpretation of the Ag-Gag statute, because *645 “[n]othing prevents a legitimate employee from conducting a recording or otherwise documenting and reporting violations of federal law,”151 so long as the whistleblower remains in possession of the recording device, the Ag-Gag statute does not compromise whistleblower protections enshrined in the False Claims Act.152 “Because fraud and waste can still be reported and qui tam actions can still go forward,”153 without triggering the Ag-Gag statute, “[w]histleblowing is still permitted [under the statute].”154
III. THE FIRST AMENDMENT SHOULD LIMIT THE PERMISSIBLE REACH OF AG-GAG STATUTES AS APPLIED TO JOURNALISTS & NEWSGATHERING ORGANIZATIONS
A. Framing Ag-Gag Statutes
Ag-Gag statutes create a conflict between private property rights and First Amendment newsgathering protections. The emergence of Ag-Gag statutes across the country, therefore, presents a significant collision between both constitutional values and public policy concerns. The recent upsurge in Ag-Gag statutes enacted155 and introduced156 across the country, in conjunction with the pending constitutional challenge to Utah's Ag-Gag statute,157 illustrate several key concepts. First, as discussed in Part II, there is a general concern that newsgathering activities will be impacted by Ag-Gag statutes. Second, as Part III explores, it is unclear regarding the extent to which the First Amendment shields newsgathering organizations from prosecution under Ag-Gag statutes. Furthermore, Ag-Gag statutes raise questions regarding the permissible use of state authority to protect private property from intrusions that are intended to expose legitimate newsworthy matters of public concern. *646
B. “The First Amendment's Restrictions on . . . Criminal Liability . . . to [Newsgathering Organizations] Who Seek Out, Receive, and Publish Information About Newsworthy Matters Are Not Simply Theoretical”
The First Amendment prohibits the use of state criminal codes to impose criminal or civil liability against newsgathering organizations as a consequence of a third party's violation of an Ag-Gag statute. The succeeding discussion illustrates the constitutional and common law principles that support the argument that newsgathering organizations, who employ individuals to surreptitiously investigate industrial agriculture operations, should not face criminal or civil liability if, or when, those investigative activities violate an Ag-Gag statute. The five Ag-Gag statutes currently in effect, however, could potentially be used to hold organizations engaged in newsgathering activities liable for a third-party violation of an Ag-Gag statute.159 Liability could be imposed either directly through a provision of the Ag-Gag statute or through the principles of secondary liability codified in the states' criminal code.
The Kansas, Montana, and North Dakota Ag-Gag statutes, for example, each contain a nearly identical private civil right of action that allows an individual or company damaged by a violation of the Ag-Gag statute to recover up to treble damages against the individual or organization responsible for actual and consequential damages that result from a violation of the Ag-Gag statute.160
The Iowa Ag-Gag statute explicitly imposes vicarious liability against any individual who “conspires to commit . . . [or] aids and abets in the commission of . . .” agricultural production facility fraud.161 Similar to the Ag-Gag statutes in Kansas, Montana, North Dakota, and Utah, the Iowa legislature created no exception from liability under its Ag-Gag statute -- such as a newsgathering exception.162In Utah, although the Ag-Gag statute is silent with regard to third-party liability, criminal liability could potentially be imposed against newsgathering organizations under the state's criminal accomplice liability or criminal *647 conspiracy liability statutes.163Furthermore, since Iowa and Utah's criminal codes provide for restitution in the case of violating the states' criminal codes, newsgathering organizations could potentially be held liable for the actual or consequential damages that resulted from the publication of information obtained in a manner that violated the states' Ag-Gag statutes.164
To allow for criminal liability or liability in restitution to be imposed against an organization engaged in newsgathering activity, because of a third party's violation of an Ag-Gag statute, implicates the First Amendment press protections - and should fail constitutional scrutiny for the reasons discussed below.
C. Absent Directly Engaging in Conduct Explicitly Criminalized by an Ag-Gag Statute, the First Amendment Prevents a Newsgathering Organization From Being Held Liable as a Result of a Third Party's Violation of an Ag-Gag Statute
Following the rule established in Bartnicki v. Vopper,165 holding that liability does not extend to media defendants if a third party committed the criminal violation,166 the First Amendment should be interpreted to immunize organizations, such as PETA and ALDF, that lawfully receive information that a third party unlawfully obtained in violation of an Ag-Gag statute. Accordingly, where an organization engaged in newsgathering activities did not actually participate in the underlying unlawful conduct, and is reporting on “a matter of public concern,”167 the organization should not be held liable for publishing surreptitiously recorded information received from a source who actually obtained the information by violating an Ag-Gag statute.
In Bartnicki, two radio stations, as well as a talk radio host, were alleged to have violated the federal and Pennsylvania wiretap statutes due to the broadcast of a private telephone conversation that had been intercepted and surreptitiously recorded by an unknown third party.168 *648 The Supreme Court faced “a question of immunity from statutorily imposed civil liability . . . [and] competing [First Amendment] constitutional concerns.”169 The Supreme Court framed the issue as whether, “[w]here the . . . publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?”170
In deciding the issue, the Supreme Court first acknowledged that “[o]ne of the stated purposes of [the wiretap statutes] was ‘to protect effectively the privacy of wire and oral communications.”’171 The Supreme Court determined that, based on the specific circumstances before it, “[t]he enforcement of [the wiretap statutes] . . . implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”172 Balancing these competing interests, the Supreme Court concluded that these set of facts make civil liability inapplicable because “our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open [supports the] general proposition that freedom of expression upon public questions is secured by the First Amendment.”’173 More succinctly, the Supreme Court concluded that “[a] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”174
Analogous to the enforcement of the wiretap statute against the radio stations and talk show host in Bartnicki is the potential enforcement of Ag-Gag statutes against newsgathering organizations that did not directly engage in conduct criminalized by the statute. As in Bartnicki, the Court would need to acknowledge that enforcement of *649 the Ag-Gag statute against newsgathering organizations, such as PETA and ALDF, “implicates the core purposes of the First Amendment because it [would] impose sanctions on the publication of truthful information of public concern.”175 These First Amendment concerns, therefore, would need to be balanced against the purpose of the Ag-Gag statute, which is to protect the property and privacy interests of industrial agriculture operations. To properly balance these interests, and comply with the Bartnicki holding that “the government [may not] punish the ensuing publication of that information based on the defect in a chain,”176 the Court should interpret the First Amendment to prevent a newsgathering organization from being held liable as a result of a third-party violation of an Ag-Gag statute -- so long as the newsgathering organization did not directly engage in conduct criminalized under the statute.
i. Application of Bartnicki by Lower Courts
Following the Supreme Court decision in Bartnicki, lower courts “have explored the extent to which a publisher's interaction with a source who unlawfully acquires information can be said to implicate the publisher itself in illegal conduct that might provide a constitutional basis for civil or criminal liability.”177 That is, in light of Bartnicki, lower courts are attempting to demarcate between First Amendment press-protected activities and illegal activities not shielded by the First Amendment. In particular, the D.C. Circuit Court of Appeals decision in Boehner v. McDermott,178 as well as the First Circuit Court of Appeals decision in Jean v. Massachusetts State Police,179 provide guidance regarding how the Bartnicki standard could be applied in the area of a newsgathering organization's potential liability for their involvement with, or connection to, a violation of an Ag-Gag statute. Specifically, the analysis and discussion below make clear that the First Amendment should immunize from liability a newsgathering organization, such as PETA or ALDF, that published information a third party unlawfully obtained in violation of an Ag-Gag statute.
In Boehner v. McDermott, Rep. John Boehner (R-Ohio) sued Rep. *650 James McDermott (D-Wash.) alleging that Rep. McDermott violated federal wiretapping statutes when he disseminated to news outlets a surreptitiously intercepted and recorded telephone conversation discussing strategy for managing a House Ethics Committee investigation of then-House Speaker, Newt Gingrich (R-Ga.).180 Rep. McDermott was a member of the House Ethics Committee at the time of his disclosure of the surreptitiously recorded conversation. Therefore, Rep. McDermott was subject to a special duty under House Ethics Committee Rule 9, “not [to] disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.”181Because Rep. McDermott breached this duty, the D.C. Circuit affirmed the lower court's judgment in favor of Rep. Boehner,182reasoning that, “Rep. McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee.”183
The court's majority, however, also concluded that in light of Bartnicki, “the otherwise-lawful receipt of unlawfully obtained information remains in itself lawful, even where the receiver knows or has reason to know that the source has obtained the information unlawfully.”184 “In other words, if [Rep.] McDermott had been a private citizen . . . the court would have concluded that his disclosure of the tape was subject to First Amendment protection regardless of the fact that he received the tape”185 with the direct knowledge that it was originally obtained unlawfully.186 Accordingly, the D.C. Circuit's decision in Boehner seems to amplify the principle fromBartnicki that First Amendment protections extend even to those who, with the knowledge that information was obtained unlawfully, proceed to disclose that information, so long as the disclosing individual did not participate in the act of surreptitiously recording.
In Jean v. Massachusetts State Police, after receiving - and posting to her local politics website - a homeowner's surreptitiously recorded video of their arrest, as well as the warrantless search of the homeowner's *651 residence by the Massachusetts State Police, the State police sent a cease-and-desist letter advising Jean that publishing the video violated Massachusetts' wiretap statute.187 Jean sought injunctive relief to preclude the State from “threatening her with prosecution or enforcing [the wiretap statute against her].”188 Applying the Supreme Court's decision in Bartnicki, as well as the D.C. Circuit's then-recent decision inBoehner,189 the First Circuit Court of Appeals determined that the First Amendment protected Jean's right to publish information lawfully obtained regardless of her knowledge that the information had originally been obtained illegally.190
The decisions in Bartnicki v. Vopper, Boehner v. McDermott, and Jean v. Massachusetts State Police create a legal framework that is informed by, and which can be reconciled with, “the reality that newsgathering organizations routinely seek out[,]”191 solicit, request, and encourage “information from a variety of sources, many of whom may be held to have violated a statute, a private contract, or some other legal or ethical duty either in obtaining the information or by disclosing it to the press.”192 These cases, therefore, provide the analytical tools for a court to determine the extent to which an organization, such as PETA or ALDF, could engage with a third party that violates an Ag-Gag statute. Moreover, to comply with Bartnicki and its progeny, when a newsgathering organization merely publishes or further utilizes information that a third party obtained unlawfully in violation of an Ag-Gag statute, the newsgathering organization must be immune from civil and criminal liability related to the third-party violation of the Ag-Gag statute.
D. Newsgathering Organizations that Facilitate a Third Party's Undercover Investigation Should Not Be Held Liable if that Investigation Violates an Ag-Gag Statute
Although “[t]he Supreme Court has made clear that the First Amendment does not provide the press with limitless protection against prosecution for breaking the law in the course of journalistic *652 endeavors,”193 there is little, as well as conflicting, guidance regarding the extent to which newsgathering organizations may be complicit in an unlawful or tortious newsgathering activity while simultaneously maintaining protection from liability. In the Fourth Circuit, for example, in light of the Court of Appeals' decision inFood Lion, Inc. v. Capital Cities/ABC, Inc.,194 the First Amendment would likely not shield newsgathering organizations from vicarious liability due to the tortious or unlawful conduct engaged in by their employees while conducting undercover investigations.195 In the Seventh Circuit, however, because of the decision in J.H. Desnick, M.D., Eye Serv. Ltd. v. Am. Broad. Co., Inc.,196 there remains the potential for the First Amendment to protect from liability newsgathering organizations whose employees engage in surreptitious investigative techniques.197 This split among the circuit courts makes it unclear whether a newsgathering organization that facilitates a third party's undercover investigation, such as PETA or ALDF and Daniel Hauff,198 would be liable if that investigator - through the course of their undercover investigation - violates an Ag-Gag statute.
In Food Lion, after receiving reports that Food Lion grocery store employees were “repackaging and re-dating [expired] fish, grinding expired beef with fresh beef, and applying barbecue sauce to chicken past its expiration date in order to mask the smell and sell it as fresh in the gourmet food section,”199 American Broadcasting Company's (“ABC”) PrimeTime Live investigative news program dispatched reporters to Food Lion grocery stores, who thereafter obtained positions as deli-clerks at two Food Lion grocery stores.200 The purpose of their employment was to surreptitiously record Food Lion employees in order to corroborate, and then broadcast, the reported unsanitary food-handling procedures.201
Following the highly publicized broadcast of the Food Lion exposé, *653 202 the Food Lion grocery chain sued ABC alleging that its surreptitious newsgathering techniques provided a basis for claims of fraud, trespass, and breach of loyalty.203 The Fourth Circuit Court of Appeals held that these claims were not barred by the First Amendment,204 and affirmed the district court's decision that the ABC defendants, which included the individual reporters as well as the parent company, were liable for trespass and breach of their duty of loyalty to Food Lion.205
In the Seventh Circuit, however, Desnick created a modicum of “judicial support for a media privilege or immunity from liability for minor newsgathering torts.”206 In Desnick, which preceded Food Lion by four years, ABC's PrimeTime Live dispatched undercover reporters to The Desnick Eye Center in order to corroborate, surreptitiously record, and then broadcast, reports that the ophthalmology practice was recommending and performing unnecessary cataract surgeries solely for the added profit.207 Following the broadcast of the PrimeTime Live exposé, ABC was sued for trespass and fraud based on the undercover techniques utilized to obtain the footage.208
However, in contrast to the Fourth Circuit decision in Food Lion, the Seventh Circuit Court of Appeals held in Desnick that ABC was not liable as a result of their employees engaging in surreptitious investigative reporting.209 Recognizing that “no theft, or intent to steal, trade secrets; *654 no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations”210 resulted fromPrimeTime Live's investigations, the Seventh Circuit determined that “[t]here was no invasion . . . of any of the specific interests that the tort of trespass seeks to protect.”211 In other words, Desnick held that PrimeTime Live's use of surreptitious recording techniques to investigate The Desnick Eye Center neither infringed upon the Center's privacy interests, nor tortuously intruded upon the Center's legitimate private business activities.212
Since neither Food Lion nor Desnick were appealed to the Supreme Court,213 these decisions control only within their specific jurisdictions. Consequently, it is unclear to what extent a newsgathering organization - without implicating itself in the unlawful conduct - can interact with a source or employee that tortuously or unlawfully acquires information through undercover investigatory techniques.214 The question remains, therefore, whether a newsgathering organization can be held liable for planning and coordinating with a third party that proceeds to engage in an undercover investigation that violates an Ag-Gag statute.
i. Public Policy Concerns Require Limitations on Ag-Gag Liability
The First Amendment should protect newsgathering organizations from liability under criminal or civil sanctions for actions that could arguably fall under the umbrella of “aiding and abetting” or “conspiracy” for two reasons. First, “a different constitutional rule -- one that would permit the imposition of criminal liability on the press when it can be broadly said to have ‘induced’ or ‘conspired’ with a source to secure newsworthy information for publication -- would fundamentally alter public discourse.”215 For example, inHandcuffing the Press: First Amendment Limitations on the Reach of Criminal Statutes as Applied to the Media,216 *655 the authors217 argue that,
If the press could be prosecuted for “aiding and abetting” violations . . . it would appear that the Washington Post, Bob Woodward, and Carl Bernstein could all have been charged in the wake of their persistent solicitation and receipt of information . . . about the FBI's then on-going [Watergate] investigation . . . . Similarly, it would appear that the San Francisco Chronicle could have been charged with aiding and abetting a violation of the Federal Rules of Criminal Procedure when a criminal defense lawyer agreed to provide the Chronicle details of grand jury testimony . . . [regarding] the extent to which performance-enhancing drugs had infiltrated . . . professional . . . sports.218
Moreover, under this alternative constitutional rule, the potential for chilling speech about newsworthy matters of public concern would be increased substantially. To avoid this problematic reality, newsgathering organizations therefore should only be held liable “in the rare circumstance where they directly commit an unlawful physical act.”219
Second, the use of vicarious or secondary liability statutes against newsgathering organizations,
[s]hould survive First Amendment scrutiny only if construed to require that (1) the press conduct at issue be unrelated to communicative acts involving the transmission of information, or (2) the defendant [newsgathering organization] evince some bad-faith purpose other than and beyond the intent to obtain information for the purpose of reporting [matters of public concern] to the public.220
Principally, the threat of potential liability should not serve to limit the truthful reporting on newsworthy matters of public concern. There would be an increased likelihood of speech pertaining to newsworthy matters of public concern being chilled if newsgathering organizations, which engage sources or employees that utilize surreptitious investigative techniques, were afforded a less robust First Amendment protection than proposed above. Newsgathering organizations, therefore, should be able to coordinate with third parties without facing (a) criminal *656 liability for the actual violation of the Ag-Gag statute or (b) secondary liability for their involvement in the activity underlying the violation.
Beginning in the early 1990s,221 and guided by industry-drafted model legislation,222 state legislatures began to pass enhanced criminal trespass statutes that applied exclusively to the industrial agriculture industry.223 These early Ag-Gag statutes, and their descendants, criminalize a variety of activities in order to protect industrial agriculture operations from surreptitious filming and recording. Financial loss and negative press,224 as well as criminal and civil liability,225 can result from the surreptitious recording activities conducted against the industrial agriculture industry. Ag-Gag statutes are being used to convert state authority into an arm of private industry in order to insulate the industry from the activities of food safety and animal welfare groups, undercover investigators, and workplace whistleblowers.
The First Amendment contemplates that our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”226 This principle should continue to serve as a barrier to findings of liability when aimed at criminalizing the pursuit of information by newsgathering organizations.227 The First Amendment, therefore, must protect from direct and secondary theories of liability newsgathering organizations that facilitate activity that violates an Ag-Gag statute. Ag-Gag statutes, by making slaughterhouses impenetrable, threaten animal welfare groups and the First Amendment *657 alike. However, there is a First Amendment right to know how the sausage is made.
a1 Managing Editor, Cardozo Public Law, Policy & Ethics Journal. J.D. Candidate, June 2015, Benjamin N. Cardozo School of Law; B.A. University of Arizona, 2007. I would like to thank Professor David Rudenstine for his guidance and invaluable advice; the editors and staffers of the Cardozo Public Law, Policy & Ethics Journal, in particular, Gregory Huffaker III, for his suggestions and hard work; and my family and friends for their endless support.
1 See Nebbia v. N.Y., 291 U.S. 502, 510 (1934) (“[N]either property rights nor contract rights are absolute .... Equally fundamental with the private rightis that of the public to regulate it in the common interest.”) (internal citations omitted).
2 This idiom captures the belief that an individual should have a near absolute right to use one's private property at their sole discretion. See Payton v. N.Y., 445 U.S. 573, 596-97 (1980) (collecting cases and noting that “[t]he zealous and frequent repetition of the adage that a ‘man's house is his castle,’ made it abundantly clear that both in England and in the Colonies ‘the freedom of one's house’ was one of the most vital elements of ... liberty”) (internal citations omitted).
3 Andrew Cohen, Muckracking (Literally): Should It be Illegal To Film Animal Abuse?, THE ATLANTIC (Mar. 11, 2012, 7:00 PM), http:// www.theatlantic.com/national/archive/2012/03/-muckraking-literally-should-it-be-illegal-to-film-animal-abuse/254289.
5 See discussion infra Part I.A-B; see also Marjorie Cortez, Bill To Prohibit Trespassing, Photographing at Agriculture Operations Heads to Final Passage, DESERET NEWS (Mar. 6, 2012, 10:39 PM), http:// www.deseretnews.com/article/865551684/Bill-to-prohibit-trespassing-photographing-at-agriculture-operations-heads-to-final-passage.html?pg=all (reporting that Utah State Sen. David Hinkins “said the [Ag-Gag] bill attempts to push back against animal rights groups ...”).
6 See discussion infra Part I.A-B.
8 See Chris Bachelder, The Jungle at 100: Why the Reputation of Upton Sinclair's Good Book Has Gone Bad, MOTHER JONES,Jan.-Feb. 2006, http:// www.motherjones.com/media/2006/01/-jungle-100.
10 Wallace F. Janssen, The Story of the Laws Behind the Labels: Part I - The 1906 Food and Drugs Act, FDA CONSUMER (June 1981), available at http:// www.fda.gov/AboutFDA/WhatWeDo/-History/Overviews/ucm056044.htm (noting that Upton Sinclair's “portrayal of insanitary conditions in the Chicago meat-packing industry ... precipitated legislation expanding federal meat regulation to provide continuous inspection of all red meats for interstate distribution ...”).
11 Plaintiffs' Opposition to Defendants' Motion to Dismiss at iv, Animal Legal Def. Fund v. Hebert, No. 13-0679, (D. Utah Dec. 12, 2013).
12 See KAN. STAT. ANN. § 47-1827 (2013).
13 See MONT. CODE ANN. § 81-30-101-105 (2013).
14 See N.D. CENT. CODE § 12.1-21.1-02 (2013).
15 See KAN. STAT. ANN. § 21-5808 (2013); MONT. CODE ANN. § 45-6-203 (2013); N.D. CENT. CODE § 12.1-22-03(2013).
16 KAN. STAT. ANN. § 47-1827 (2013) (emphasis added).
17 See MONT. CODE ANN. § 81-30-103(2)(e) (2013).
18 Compare KAN. STAT. ANN. § 47-1827(c) (lacking any specific requirement of defamatory intent), with MONT. CODE ANN. § 81-30-103(2)(e) (requiring intent to commit criminal defamation).
19 MONT. CODE ANN. § 81-30-103(2)(e) (2013) (emphasis added).
20 See KAN. STAT. ANN. § 47-1827 (2013) (requiring the intent to damage the agriculture operation); MONT. CODE ANN. § 81-30-103 (2013) (requiring intent to cause damage and intent to commit criminal defamation).
21 N.D. CENT. CODE § 12.1-21.1-02 (2013).
23 See KAN. STAT. ANN. § 47-1826(b) (2013); MONT. CODE ANN. § 81-30-102(2) (2013); N.D. CENT. CODE § 12.1-21.1-01(2) (2013).
24 See KAN. STAT. ANN. § 47-1828(g)(1)-(4) (2013).
25 KAN. STAT. ANN. § 47-1827(c)(4) (2013).
26 See KAN. SENTENCING COMM'N, NON-DRUG OFFENSES SENTENCING RANGE,http://www.sentencing.ks.gov/docs/default-source/2013-forms/sentencing-range---nondrug-offenses.pdf?sfvrsn=0 (last visited Feb. 14, 2014).
27 See MONT. CODE ANN. § 81-30-105(2) (2013) (“A person convicted of an act ... that results in $500 or less in damage ... shall be fined not more than $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.”).
28 See MONT. CODE ANN. § 81-30-105(3) (2013) (“A person convicted of an act ... that results in more than $500 in damage ... shall be fined not more than $50,000 or be imprisoned in the state prison for a term not to exceed 10 years, or both.”).
29 Compare MONT. CODE ANN. § 81-30-105(2)-(3) (2013), with N.D. CENT. CODE § 12.1-32-01(6) (2013).
30 See N.D. CENT. CODE § 12.1-32-01(6) (2013) (“Class B misdemeanor, for which a maximum penalty of thirty days' imprisonment, a fine of one thousand five hundred dollars, or both, may be imposed.”).
31 See KAN. STAT. ANN. § 47-1828 (2013); MONT. CODE ANN. § 81-30-105 (2013); N.D. CENT. CODE § 12.1-21.1-05(2013).
32 KAN. STAT. ANN. § 47-1828 (2013) (emphasis added).
34 See MONT. CODE ANN. § 81-30-105 (2013); N.D. CENT. CODE § 12.1-21.1-05 (2013).
35 Kan., Mont., & N.D. do not actually accumulate reporting statistics regarding criminal prosecutions under their Ag-Gag statutes. At the time of Amy Meyer's prosecution in Utah, however, numerous media outlets reported that she was the first individual to be charged under an Ag-Gag statute. See Zaineb Mohammed, Animal Rights Groups Challenge Utah's Ag Gag Law, MOTHER JONES (July 25, 2013, 3:00 AM), available at http://www.motherjones.com/blue-marble/2013/07/utah-ag-gag-lawsuit-animal-rights; John Upton, Historic Lawsuit Alleges Ag-Gag Is Unconstitutional,GRIST (July 23, 2013, 3:58 PM), available at http://grist.org/news/historic-lawsuit-alleges-ag-gag-is-unconstitutional/;see also Eli Epstein, Nation's First “Ag-Gag” Prosecution Dismissed in Utah, MSN NEWS (May 1, 2013), available athttp://news.msn.com/us/nations-first-ag-gag-prosecution-dismissed-in-utah (noting that “[t]he nation's first ‘ag gag’ prosecution didn't get very far”); Natasha Lennard, First “Ag-Gag” Charges Brought . Charges Brought ... and then Dropped, SLATE (Apr . 30, 2013, 3:48 PM), available athttp://www.salon.com/2013/04/30/first_ag_gag_charges_brought_ and_then_dropped (“This is the first prosecution in the country under one of these laws ... ”).
36 Westlaw search shows no Ag-Gag statutes were passed between 1991 and 2012. (last viewed Feb. 14, 2014).
37 IOWA CODE § 717A.3A (2013); UTAH CODE ANN. § 76-6-112 (West 2013).
38 See discussion supra Part I.A.i.
39 IOWA CODE § 717A.3A (2013).
40 UTAH CODE ANN. § 76-6-112 (West 2013).
41 IOWA CODE § 717A.3A (2013).
43 See id.; see also IOWA CODE § 903.1(1)(b) (2013) (“For a serious misdemeanor, there shall be a fine of at least [$350] but not to exceed [$1,875]. In addition, the court may also order imprisonment not to exceed one year.”).
44 See IOWA CODE § 717A.3A(2)(b) (2013); see also IOWA CODE § 903.1(2) (2013) (“[T]he maximum penalty shall be imprisonment not to exceed two years. There shall be a fine of at least [$625] but not to exceed [$6,250].”).
45 UTAH CODE ANN. § 76-6-112 (West 2013).
46 UTAH CODE ANN. § 76-6-112(2)(a) (West 2013).
47 See generally AMAZON, http://www.amazon.com/s/ref=nb_sb_ss_i_0_ 12/187-6870414-9855801?url=search-alias%3Daps&field-keywords=miniature% 20camera&sprefix=miniature+ca%2Caps%C2C180&rh=i%C3Aaps%C2Ck%C3Aminiature%20camera (last viewed Feb. 14, 2014). (Online retailers sell miniature digital high-definition video cameras for less than $5).
48 UTAH CODE ANN. § 76-6-112 (West 2013).
49 Id .
50 See id.
51 See UTAH CODE ANN. § 76-3-204(2) (West 2013).
52 See UTAH CODE ANN. § 76-3-301 (West 2013).
53 See UTAH CODE ANN. § 76-6-112 (West 2013).
54 See UTAH CODE ANN. § 76-3-204(1) (West 2013).
55 See UTAH CODE ANN. § 76-3-301 (West 2013).
56 See UTAH CODE ANN. § 76-5-102.4(2) (West 2013).
57 See discussion supra Part I.A.ii.
58 IOWA CODE §717A.3A(3)(a) (2013).
60 See IOWA CODE § 703.2 (2013).
61 See IOWA CODE § 706.1 (2013).
62 UTAH CODE ANN. § 76-2-202 (West 2013).
63 UTAH CODE ANN. § 76-4-201 (West 2013).
64 See IOWA CODE § 910.2 (2013); UTAH CODE ANN. § 77-38a-302(1) (West 2013).
65 See IOWA CODE § 910.1 (2013) (“‘Victim’ means a person who has suffered pecuniary damages as a result of the offender's criminal activities.”); UTAH CODE ANN. § 77-38a-102(14)(a) (West 2013) (“‘Victim’ means any person whom the court determines has suffered pecuniary damages as a result of the defendant's criminal activities.”).
66 See IOWA CODE § 910.2 (2013); UTAH CODE ANN. § 77-38a-302(1) (West 2013).
67 Ted Genoways, Gagged by Big Ag: Horrific Abuse. Rampant Contamination. And the Crime Is ... Exposing It?,MOTHER JONES (July/Aug. 2013), http://www.motherjones.com/environment/2013/06/ag-gag-laws-mowmar-farms.
69 Plaintiffs' Opposition to Defendants' Motion to Dismiss, supra note 11, at 54-57; see also Moyers & Co.: United States of ALEC (WNET television broadcast Sept. 28, 2012), available at http://billmoyers.com/segment/united-states-of-alec/ (describing the American Legislative Exchange Council as “a national consortium of state politicians ... powerful corporations [and] ... a vast network of corporate lobbying and political action aimed to increase corporate profits at public expense without public knowledge.”).
See Jessalee Landfried, Bound & Gagged: Potential First Amendment Challenges to “Ag-Gag” Laws, 23 DUKE ENVTL. L. & POL'Y F. 377, n.11 (listing the nine states where Ag-Gag bills were introduced during the 2013 legislative session).
71 See discussion supra Part I.A.i., B.i.
72 See GOV'T ACCOUNTABILITY PROJECT, http:// www.whistleblower.org/about/gap-staff-/98-amanda-hitt-public-health-associate (last visited Feb. 14, 2014); see generally Genoways, supra note 67.
73 GOV'T ACCOUNTABILITY PROJECT, supra note 14; see generally FOOD INTEGRITY CAMPAIGN, http://www.foodwhistleblower.org/learn-more (last visited Feb. 14, 2014) (stating that the Food Integrity Campaign's mission is “to educate whistleblowers throughout the food industry about their rights, and advocate for stronger free speech protections for such workers, in order to better safeguard public health.”).
74 Genoways, supra note 67.
76 See NAT. PORK BD., http:// www.pork.org/AboutUs/2369/PorkBoardStaff1.aspx#.UuGpz2Qo7PA (last visited Feb. 14, 2014).
77 See Genoways, supra note 67.
78 Genoways, supra note 67; see generally Steve Mullis, Leaked Video Shows Romney Discussing ‘Dependent’ Voters,NPR (Sept. 17, 2012, 7:34 PM), available at http:// www.npr.org/blogs/itsallpolitics/2012/09/17/161313644/leaked-video-purports-to-show-romney-discuss-dependent-voters (reporting that at a private fundraiser, Mitt Romney, the 2012 Republican Presidential nominee, was surreptitiously recorded saying, “47% of the people who will vote for [President Obama] no matter what ... believe the government has a responsibility to care for them ... These are people who pay no income tax.”).
79 See Agric. Operation Interference Act: Hearing on H. B. 187s2 Before the H. Law Enforcement & Criminal Justice Comm., 2012 Leg., 59th Sess. (Utah 2012) (statement of John J. Mathis, Member, H. Comm. on Natural Res., Agric., and Env't Comm. arguing that “what these [animal rights and welfare] groups are doing is akin to a neighborhood watch group ... taking it upon themselves to go into your home to leave hidden cameras and recording devices in your home because you have children and someday might do some harm to one of those kids”), http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=1145&meta_ id=44538. (last visited Feb. 14, 2014).
80 See Jim Dalrymple II, Woman Facing Misdemeanor for Video Recording Utah Slaughterhouse, SALT LAKE TRIB. (Apr. 30, 2013, 3:32 PM), available at http://www.sltrib.com/sltrib/news/56235040-78/meyer-gollan-monday-utah.html.csp.
81 See id.; see also Mohammed, supra note 35.
See Dalrymple, supra note 80.
86 See Mohammed, supra note 35; see also Upton, supra note 35.
87 Jim Dalrymple II, Utah Prosecutor Dismisses Suddenly High-Profile ‘Ag Gag’ Case, SALT LAKE TRIB. (May 1, 2013, 7:39 AM), available at http:// www.sltrib.com/sltrib/news/56240592-78/case-meyer-law-gag.html.csp.
88 Complaint, Animal Legal Def. Fund v. Hebert, No. 13-0679, (D. Utah July 22, 2013).
89 See id.
90 Id. at 5-7. On August 7, 2014, the Court granted in part and denied in part Defendants' Motion to Dismiss. Consequently, the motion to dismiss Plaintiffs CounterPunch, Will Potter, James McWilliams, and Jesse Fruhwith was granted.
92 See Press Release, Animal Legal Def. Fund, Animal Legal Def. Fund Files Historic “Ag Gag” Lawsuit (July 22, 2013),available at http:// aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit.
93 See Complaint, supra note 88, at 35-37.
94 Id. at 34-39.
95 31 U.S.C. §§ 3729-30 (2006).
96 See Complaint, supra note 88, at 38.
98 Id. at 2.
99 Id. at 5.
101 See id. at 1.
102 See UNIVERSITY OF DENVER STRUM COLLEGE OF LAW FACULTY PROFILES, http://www.law.du.edu/index.php/profile/justin-marceau (last visited Feb. 14, 2014).
103 Mohammed, supra note 35.
104 Id. (emphasis added).
106 Pl.'s Opp'n to Defs.' Mot. to Dismiss at 1, Animal Legal Def. Fund v. Hebert, No. 13-0679, (D. Utah Dec. 12, 2013); see also id. at 2 (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (en banc) (alteration in original) (citation omitted), which “recognized that a chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injury in fact, as long as it ‘arise[s] from an objectively justified fear of real consequences' ... [and] ‘a credible threat of prosecution or other consequences flowing from the statute's enforcement.”’)).
107 Id. at 1. Id. at 1.
108 Id. at vii.
109 Id. at 1.
111 Id. at 13-14 (citation omitted).
112 Id. at 13.
113 See id. at 14-20.
114 Id. at 21-22.
116 31 U.S.C. §§ 3729-33 (2006).
117 See Pl.'s Opp'n to Defs' Mot. to Dismiss, supra note 106, at 24-29.
118 See 31 U.S.C. § 3730(b)(1) (2006).
119 See Pl.'s Opp'n to Defs.' Mot. to Dismiss, supra note 106, at 26.
120 Id. at 26 (quoting Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987)).
121 Defs.' Mot. to Dismiss and Supporting Mem. at iv, Animal Legal Def. Fund v. Hebert, No. 13-0679, (D. Utah Oct. 11, 2013).
122 See id. at 23-25.
123 See Defs.' Mot. to Dismiss and Supporting Mem., supra note 121; see also Pl.'s Opp'n to Defs.' Mot. to Dismiss, supranote 106, at 14 (noting that “Defendants declined to address the merits of the First Amendment analysis”).
124 See Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 26.
125 See id. at 11.
127 See id.
128 See Compl., supra note 88, at 7-9.
129 See Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 11 (arguing that neither party alleged an intent or sufficiently specific plan to violate the Ag-Gag statute).
130 Id at 11-12.
131 Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 11 (emphasis added).
132 Defs.' Reply Mem. in Support of its Mot. to Dismiss at 4, Animal Legal Def. Fund v. Hebert, No. 13-0679 (D. Utah Jan. 9, 2014).
133 UTAH CODE ANN. § 76-2-202 (West 2013).
134 UTAH CODE ANN. § 76-4-201 (West 2013).
135 Compl., supra note 88, at 16.
136 Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 8.
137 See id. at 9-12.
138 See id. at 20 (“Plaintiffs allege a number of connections between national pro-agriculture groups and specific legislators ... these mere connections do not demonstrate animus ... At best, they may show collusion.”).
139 Defs' Reply Mem. in Support of its Mot. to Dismiss, supra note 132, at 8.
140 446 U.S. 55 (1980).
141 Defs.' Reply Mem. in Support of its Mot.to Dismiss, supra note 132, at 7 (quoting City of Mobile, 446 U.S. at 92).
142 413 U.S. 528 (1973).
143 Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 9.
145 Id. at 12-13.
146 Id. at 15.
147 Defs.' Reply Mem. in Support of its Mot. to Dismiss, supra note 132, at 8.
148 Id. at 9 (quoting Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480, 489 (10th Cir. 1998)).
149 Id. at 9-10.
150 See id.
151 Defs.' Mot. to Dismiss and Supporting Mem., supra note 121, at 17.
152 See id. (arguing that the Utah Ag-Gag statute “does not proscribe all recording, only that recording which is obtained ‘by leaving a recording device on the agricultural operation.”’).
153 Id. at 10.
154 Defs.' Reply Mem. in Support of its Mot. to Dismiss, supra note 132, at 9-10.
155 See discussion supra Part I.
156 See Landfried, supra note 70 and accompanying text.
157 See discussion supra Part II.
158 Lee Levine, Nathan E. Siegel & Jeanette Melendez Bead, Handcuffing the Press: First Amendment Limitations on the Reach of Criminal Statutes as Applied to the Media, 55 N.Y.L. SCH. L. REV. 1015, 1030 (2010/2011).
159 See discussion infra Part I.A.
160 See discussion supra Part I.A.ii.
161 IOWA CODE § 717A.3A(3)(a) (2013).
162 See IOWA CODE § 717A.3A (2013) (listing no exceptions for prosecution under the statute).
163 See discussion supra Part I.B.i; see also Landfried, supra note 70, at 391-93 (noting that the vagueness of the Kansas Ag-Gag statute makes it unclear what type of conduct is necessary to trigger liability under the statute).
164 See discussion supra Part I.B.i.
165 532 U.S. 514 (2001).
166 Bartnicki, 532 U.S. at 528, 535.
167 See Connick v. Meyers, 461 U.S. 138, 146 (1983) (defining “speech on a matter of public concern .... as [speech] relating to any matter of political, social, or other concern to the community ...”).
168 See Bartnicki, 532 U.S. at 518-20 (During negotiations regarding a collective-bargaining agreement, an unidentified third party surreptitiously recorded a phone conversation between the union negotiator and the union president. Vopper, a radio talk show host, played the tape of the conversation on his public affairs talk show. Petitioners filed suit alleging, inter alia, that their conversation had been surreptitiously intercepted and recorded by a third party; that Respondent Yocum, the head of a local organization opposed to the union's demands, obtained the tape, intentionally disclosed it to the media, and that the conversations were published with the knowledge that the conversations were illegally recorded.).
169 Id. at 536.
170 Id. at 528 (emphasis added) (quoting Boehner v. McDermott, 191 F.3d 463, 484-85 (D.C. Cir. 1999) (Sentelle, J. dissenting) (internal quotation marks omitted)).
171 Id. at 523.
172 Id. at 533-34.
173 Id. at 534 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)).
174 Bartnicki, 532 U.S. at 535.
175 Id. at 533-34.
176 Id. at 527.
177 Levine, Siegel & Bead, supra note 158, at 1025-26.
178 484 F.3d 573 (D.C. Cir. 2007).
179 492 F.3d 24 (1st Cir. 2007).
180 See Boehner, 484 F.3d at 575-76.
181 Id. at 579.
182 See id. at 581.
183 Id. at 581 (Griffith, J. concurring).
184 Id. at 585 (Sentelle, J. dissenting) (noting that the case would have been disposed in McDermott's favor but for his violation of Ethics Committee Rule 9).
185 Jean v. Mass. State Police, 492 F.3d 24, 32 (1st Cir. 2007) (emphasis in original).
186 See Levine, Siegel & Bead, supra note 158, at 1026.
187 See Jean, 492 F.3d at 25-26.
188 Id. at 26.
189 Seeid. at 29-33.
190 See id. at 25, 33.
191 Levine, Siegel & Bead, supra note 158, at 1026.
193 Landfried, supra note 70, at 384; see, e. g., Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (holding that the First Amendment did not prohibit a confidential source from recovering damages based on the newspaper publishers' breach of a promise of confidentiality).
194 Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).
195 See discussion infra Part III.D.
196 J.H. Desnick, M.D., Eye Serv. Ltd. v. Am. Broad, Co., Inc., 44 F.3d. 1345 (7th Cir. 1995).
197 See discussion infra Part III.D.
198 See Plaintiff's Opposition to Defendant's Motion to Dismiss, supra note 106, at vii; see also discussion supra Part (II)(b).
199 Food Lion, 194 F.3d at 511.
200 Id. at 510.
201 See id. at 510-11.
202 See Randall P. Bezanson, Means and Ends and Food Lion: The Tension Between Exemption and Independence in Newsgathering by the Press, 47 EMORY L.J. 895, 904 (noting ABC's “decision to air the segment ... during the fall sweeps week”); see also Daniel A. Levin & Alan C. Roline, Undercover Reporters, Tort Law and the First Amendment Food Lion v. ABC and the Future of Surreptitious Newsgathering, 11 KAN. J.L. & PUB. POL'Y 575, 582 (“More viewers watched the Food Lion episode of [ PrimeTime Live] than any prior [ PrimeTime Live episode.]”).
203 See Food Lion, 194 F.3d at 509.
204 See id. at 520-22 (noting that “heightened scrutiny does not apply because the tort laws [violated by the two ABC reporters,] (breach of duty of loyalty and trespass) [,] do not single out the press or have more than an incidental effect upon its work”); see also id. at 521 (quoting Cohen v. Cowles Media Co., 501 U.S. 663, 669) (1991) (“[G]enerally 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.”).
205 See id. at 524.
206 Andrew B. Sims, Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines, 78 B.U. L. REV. 507, 517.
207 See J.H. Desnick, M.D., Eye Serv. Ltd. v. Am. Broad. Co., Inc., 44 F.3d. 1345, 1347-48 (7th Cir. 1995) (noting that The Desnick Eye Center had performed “more than 10,000 cataract operations a year, mostly on elderly persons whose cataract surgery [wa]s paid for by Medicare”).
208 Id. at 1347, 1353.
209 Id. at 1355.
210 Id. at 1353.
211 Id. at 1352.
212 See id. at 1353.
213 The procedural histories for both cases indicate that no petitions for certiorari were submitted. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999); Desnick, 44 F.3d at 1345.
214 The Supreme Court has yet to hear a case that addresses the extent to which the First Amendment limits the reach of criminal or civil liability as applied to the media regarding their activity related to an undercover investigation. Seediscussion supra Part III.D.
215 Levine, Siegel & Bead, supra note 158, at 1034.
216 See id.
217 Two of the three authors were involved in the Bartnicki v. Vopper and Food Lion v. ABC lawsuits. Id. at n.a1.
218 Id. at 1034.
219 Id. at 1030.
220 Id. at 1036 (emphasis added).
221 See discussion supra Part I.A.
222 See Moyers & Co., supra note 69.
223 See discussion supra Part I.
224 See Tyson Foods Dumps Pig Farm After NBC Shows Company Video of Alleged Abuse, NBC NEWS (Nov. 20, 2013, 6:12 AM), available at http:// www.nbcnews.com/news/investigations/tyson-foods-dumps-pig-farm-after-nbc-shows-company-video-v21534986; Dan Flynn, Suit Seeks Lunch Money Refund for Downer Beef, FOOD SAFETY NEWS (Oct. 2, 2009), available at http:// www.foodsafetynews.com/2009/10/one-of-the-nastiest/#.UwpmrPRdWoU.
225 See Editorial, Farm Whistle-Blower Bill Overreaches, THE GAZETTE (Mar. 25, 2011), available athttp://thegazette.com/2011/03/25/farm-whistle-blower-bill-overreaches/ (“[A]s part of a civil settlement stemming from a Mercy For Animals undercover investigation, Quality Egg of New England, one of the nation's biggest egg producers, pleaded guilty to 10 counts of cruelty to animals. Quality Egg also agreed to pay more than $130,000 in fines and restitution.”).
226 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
227 See Levine, Siegel & Bead, supra note 158, at 1031.