Ag-Gag Challenged: The Likelihood of Success of Animal Legal Defense Fund v. Herbert’s First Amendment Claims
A series of undercover videos exposing inhumane conditions on factory farms has sprung up in recent years. In 2011, an activist working for Mercy for Animals filmed undercover at Sparboe Egg Farms, McDonald’s main egg supplier. The Humane Society of the United States (HSUS) documented disturbing acts of animal cruelty at a Bushway Packing slaughterhouse in Grand Isle, Vermont in 2009, and later at Hallmark Meat Packing in Chino, California. When leaked to the public, the footage obtained during these undercover investigations can have dramatic, tangible effects. As a result of Mercy for Animals’ investigation, Sparboe received a warning letter from the Food and Drug Administration and McDonald’s dropped the company as its supplier. As of November 13, 2013, the video had over 1,100,000 views on Youtube. Following HSUS’ investigation at Grand Isle, the state shut down the slaughterhouse and charged two former employees with animal cruelty. HSUS’ investigation in Chino led to the largest meat recall in history.
The agricultural industry has responded to these damaging exposés by aggressively pursuing ag-gag laws, which generally prohibit undercover filming of animal cruelty on factory farms. The first laws resembling ag-gag laws appeared in Kansas, Montana, and North Dakota in the early 1990s. Five states–Utah, Iowa, North Dakota, Montana, and Kansas–now have ag-gag laws on the books. As of March 2013, legislatures in seven other states–Indiana, New Hampshire, Nebraska, Wyoming, New Mexico, Pennsylvania and Arkansas–were considering them. Proponents of ag-gag laws cite several reasons for their support. Some claim that they protect agricultural producers from the unnecessary stress of allowing people to film the daily happenings of their business. Others believe that those willing to lie on an application to work at the farm might exaggerate any animal cruelty that does exist and unfairly misrepresent conditions on factory farms.
Utah’s ag-gag bill was first introduced in February 2012, and was signed into law on March 20, 2012. Earlier this year, Amy Meyer became the first person charged under the law. On February 8, 2013, Amy Meyer decided to visit Dale Smith Meatpacking Company in Draper City, Utah to witness the treatment of animals on a typical factory farm. A self-described animal rights activist, Meyer had chosen this particular slaughterhouse because she had heard spectators could get a glimpse of the conditions from a public sidewalk across the street. While standing on the sidewalk, she pulled out her cellphone and recorded what she saw: piles of horns strewn across the property and an injured cow being carried away in a tractor. The slaughterhouse manager confronted her and demanded that she leave, but she refused, stating that she was on public property and had the right to film. When the police arrived, Meyer left the scene without incident. The State of Utah later charged her with “agricultural operation interference” under Utah’s recently enacted ag-gag law–the nation’s first ag-gag prosecution. On May 31, 2013, prosecutors dropped the charges after analyzing new video evidence that confirmed Meyer had filmed from public property.
But a second legal battle was only beginning. On July 22, 2013, Animal Legal Defense Fund, People for the Ethical Treatment of Animals, Amy Meyer, and a handful of other animal activists sued the state of Utah in Animal Legal Defense Fund v. Herbert, claiming that Utah’s ag-gag law is overbroad, constitutes content-based discrimination, is preempted by the federal False Claims Act, and violates animal protection groups’ equal protection and due process. The suit is the first legal challenge to any ag-gag law in the nation. It is “landmark” in its novelty but also in the importance of the issues it entails: “[t]he American public relies on journalists and activists to expose inhumane and unsafe food production practices in industrial facilities.”
This Note analyzes the likelihood of success of each of the First Amendment claims–overbreadth and content-based discrimination–by comparing them to the reasoning and outcome in analogous cases. United States v. Stevens and Ward v. Utah provide examples of different courts’ analyses of overbreadth claims in the animal cruelty and animal activism contexts respectively. Stevens also includes a content-based discrimination claim, and Showing Animals Respect and Kindness v. West Hollywood provides another example. In addition, Animal Legal Defense Fund v. Herbert presents important policy concerns regarding the importance of undercover activism in advancing the humane treatment of farmed animals and the safety of our food supply. This Note argues that whistleblowers are vital to animal protection groups because factory farm workers and USDA inspectors are unlikely to report abuse, leaving a gap that animal activists successfully fill when they are allowed to film undercover.
Questions and inquiries regarding this Note may be sent to the author at LawReview@vermontlaw.edu.
 Richard A. Oppel Jr., Taping of Farm Cruelty Is Becoming the Crime, N,Y. Times, Apr. 6, 2013, http://www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-is-becoming-the-crime.html?_r=0.
 McDonald’s Animal Cruelty: McDonald’s Drops Supplier Sparboe Egg Farms after Undercover Investigation, Huffington Post, Nov. 18, 2011, http://www.huffingtonpost.com/2011/11/18/mcdonalds-animal-cruelty_n_1101519.html.
 John Curran, 2 Vt. Slaughterhouse Workers Charged with Cruelty, Bos. Globe, June 4, 2010, http://www.boston.com/business/articles/2010/06/04/2_vt_slaughterhouse_workers_charged_with_cruelty/.
 Rick Weiss, Video Reveals Violations of Laws, Abuse of Cows at Slaughterhouse, Washington Post, Jan. 30, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/01/29/AR2008012903054.html.
 Oppel, supra note 1.
 Emily York, McDonald’s Drops Egg Supplier over Animal Cruelty Report, Chi. Tribune, Nov. 18, 2011, http://articles.chicagotribune.com/2011-11-18/news/chi-mcdonalds-drops-egg-supplier-over-animal-cruelty-report-20111118_1_egg-farmers-animal-welfare-egg-supplier.
 Vermont Slaughterhouse Closed Amid Animal Cruelty Allegations, L.A. Times, Nov. 3, 2009, http://latimesblogs.latimes.com/unleashed/2009/11/vermont-slaughterhouse-closed-amid-animal-cruelty-allegations.html.
 2 Vt. Slaughterhouse Workers Charged with Cruelty, Bos. Globe, June 4, 2010, http://www.boston.com/business/articles/2010/06/04/2_vt_slaughterhouse_workers_charged_with_cruelty/.
 Michael Hill, The Animal Enterprise Terrorism Act: The Need for a Whistleblower Exception, 61 Case W. Res. L. Rev. 651, 679 (2010).
 Jessalee Landfried, Bound & Gagged: Potential First Amendment Challenges to “Ag-Gag” Laws, 23 Duke Envtl. L. & Pol’y F. 377, 378 (2013); Lewis Bollard, Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms, 42 Envtl. L. Rep. News & Analysis, 10960, 10962 (2012).
 Dan Flynn, Five States Now Have ‘Ag-Gag’ Laws on the Books, Food Safety News (Mar. 26, 2012), http://www.foodsafetynews.com/2012/03/five-states-now-have-ag-gag-laws-on-the-books/#.UkiUERZ5nzI.
 Sam Robinson, More States Considering ‘Ag-Gag’ Laws, Harvest Pub. Media (Mar. 15, 2013), http://harvestpublicmedia.org/article/more-states-considering-ag-gag-laws.
 A.G. Sulzberger, States Look to Ban Efforts to Reveal Farm Abuse, The New York Times (Apr. 13, 2011), http://www.nytimes.com/2011/04/14/us/14video.html?_r=0.
 H.B. 187, 59th Leg., Gen. Sess. (Utah 2012).
 Robert Gehrke, Herbert Signs So-Called ‘Ag-Gag’ Bill, Salt Lake Tribune (Mar. 20, 2012 7:24 PM), http://www.sltrib.com/sltrib/politics/53758916-90/animal-bill-brown-farm.html.csp.
 Eli Epstein, Nation’s First ‘Ag Gag’ Prosecution Dismissed in Utah, MSN News (May 1, 2013), http://news.msn.com/us/nations-first-ag-gag-prosecution-dismissed-in-utah?stay=1.
 Leighton Akio Woodhouse, Charged with the Crime of Filming a Slaughterhouse, The Nation (July 31, 2013), http://www.thenation.com/article/175506/charged-crime-filming-slaughterhouse#.
 Epstein, supra note 19.
 Will Potter, First “Ag-Gag” Prosecution: Utah Woman Filmed a Slaughterhouse from the Public Street, Green is the New Red (Apr. 29, 2013), http://www.greenisthenewred.com/blog/first-ag-gag-arrest-utah-amy-meyer/6948/.
 Epstein, supra note 19.
 Utah Code Ann. §76-6-112 (West 2012).
 Epstein, supra note 19.
 Complaint, Animal Legal Defense Fund v. Herbert, No. 2:13 CV00679 (D. Utah July 22, 2013).
 Andrea Germanos, Landmark Lawsuit Challenges ‘Ag-Gag’ Law, Common Dreams (July 23, 2013), https://www.commondreams.org/headline/2013/07/23-7.
 Stephen Wells, Landmark ‘Ag Gag’ Lawsuit Fights Threat to Freedom of Speech, Huffington Post (July 23, 2013), http://www.huffingtonpost.com/stephen-wells/ag-gag-bill_b_3635527.html.
 United States v. Stevens, 559 U.S. (2010).
 Ward v. Utah, 398 F.3d 1239 (10th Cir. 2005).
 Showing Animals Respect and Kindness v. W. Hollywood, 166 Cal.App.4th 815 (Cal. Ct. App. 2008).