Animal Legal Defense Fund v. Herbert

Decision Date07 July 2017
Docket NumberCase No. 2:13–cv–00679–RJS
Citation263 F.Supp.3d 1193
Parties ANIMAL LEGAL DEFENSE FUND, People for the Ethical Treatment of Animals, and Amy Meyer, Plaintiffs, v. Gary R. HERBERT, in his official capacity as Governor of Utah, and Sean D. Reyes, in his official capacity as Attorney General of Utah, Defendants.
CourtU.S. District Court — District of Utah

Alan K. Chen, Justin F. Marceau, University of Denver Sturm College of Law, Edward T. Ramey, Heizer Paul Grueskin LLP, Denver, CO, Christopher Berry, Matthew Liebman, Animal Legal Defense Fund, Cotati, CA, Matthew D. Strugar, Law Office of Matthew Strugar, Los Angeles, CA, Stewart W. Gollan, Ricks & Gollan PLLC, Salt Lake City, UT, for Plaintiffs.

Darin B. Goff, David N. Wolf, Kyle J. Kaiser, Utah Attorney General's Office, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

ROBERT J. SHELBY, United States District Judge

Utah recently joined the growing number of states to enact so-called "ag-gag" laws—laws that target undercover investigations at agricultural operations. Utah's version operates, in relevant part, by criminalizing both lying to get into an agricultural operation and filming once inside. Plaintiffs contend the law violates their First Amendment rights. For the reasons below, the court agrees.

BACKGROUND

For as long as farmers have put food on American tables, the government has endeavored to support and protect the agricultural industry. In an address to Congress shortly after the Revolutionary War, George Washington, an ardent tobacco farmer, declared that "agriculture is of primary importance," and argued that the rapid growth of the young nation rendered "the cultivation of the soil more and more an object of public patronage."1 Congress heeded the call, and federal legislation in the ensuing decades led to the development of millions of acres of farmland across the country.2

As agriculture expanded, so too did governmental investment in it. Toward the end of the nineteenth century, President Lincoln established the Department of Agriculture—known then as "The People's Department"—and Congress began providing cash to states to conduct agricultural research.3 In the mid-twentieth century, following the Great Depression, President Roosevelt's administration went so far as to pay farmers to stop growing crops and to destroy existing crops and livestock in order to stabilize prices by artificially limiting supply.4 To this day, the federal government has continued to support the agricultural industry through measures like nonrecourse loans, subsidies, and price guarantees, as have the states, all of which have enacted right-to-farm laws.5 In short, governmental protection of the American agricultural industry is not new, and has taken a variety of forms over the last two hundred years.

What is new, however, is the recent spate of state laws that have assumed an altogether novel approach: restricting speech related to agricultural operations. These so-called "ag-gag" laws have their genesis in the 1990s. Around that time, animal rights advocates had begun conducting undercover investigations to expose animal abuse at various facilities.6 After these initial investigations became public, Kansas, Montana, and North Dakota all enacted ag-gag laws.7 The laws criminalized entering an animal facility and filming without consent.8

Nobody was ever charged under these laws, and for nearly two decades no new ag-gag legislation was introduced. That changed, however, after a series of high profile undercover investigations were made public in the mid to late 2000s. To name just a few, in 2007, an undercover investigator at the Westland/Hallmark Meat Company in California filmed workers forcing sick cows, many unable to walk, into the "kill box" by repeatedly shocking them with electric prods, jabbing them in the eye, prodding them with a forklift, and spraying water up their noses.9 A 2009 investigation at Hy–Line Hatchery in Iowa revealed hundreds of thousands of unwanted day-old male chicks being funneled by conveyor belt into a macerator to be ground up live.10 That same year, undercover investigators at a Vermont slaughterhouse operated by Bushway Packing obtained similarly gruesome footage of days-old calves being kicked, dragged, and skinned alive.11 A few years later, an undercover investigator at E6 Cattle Company in Texas filmed workers beating cows on the head with hammers and pickaxes and leaving them to die.12 And later that year, at Sparboe Farms in Iowa, undercover investigators documented hens with gaping, untreated wounds

laying eggs in cramped conditions among decaying corpses.13

The publication of these and other undercover videos had devastating consequences for the agricultural facilities involved. The videos led to boycotts of facilities by McDonald's, Target, Sam's Club, and others.14 They led to bankruptcy and closure of facilities and criminal charges against employees and owners.15 They led to statewide ballot initiatives banning certain farming practices.16 And they led to the largest meat recall in United States history, a facility's entire two years' worth of production.17

Over the next three years, sixteen states introduced ag-gag legislation.18 Iowa's was the first to go into effect. It was introduced in the wake of the Iowa Sparboe Farms video, in addition to the publication of several other undercover investigations in Iowa.19 According to its sponsors, the bill's purpose was "to crack down on activists who deliberately cast agricultural operations in a negative light and let cameras roll rather than reporting abuse immediately," and to stop "subversive acts" that could "bring down the industry," including acts committed by "extremist vegans."20 The Iowa law prohibits obtaining access to an agricultural production facility under false pretenses and lying on a job application with the intent to commit an unauthorized act.21

Utah's bill came less than a month later. Representative John Mathis, the sponsor of the House bill, declared the bill was motivated by "a trend nationally of some propaganda groups ... with a stated objective of undoing animal agriculture in the United States."22 Another representative (a farmer by trade) stated that the bill was targeted at "a group of people that want to put us out of business," and noted that farmers "don't want some jack wagon coming in taking a picture of them."23 Senator David Hinkins, the sponsor of the Senate bill, declared the bill was meant to address the "vegetarian people that [are] trying to kill the animal industry" by "hiding cameras and trying to ... modify the films and stuff like that," explaining "[t]hat's what we're trying to prevent here."24

The bill ultimately enacted in Utah consists of four provisions: a lying provision, and three recording provisions.25 The lying provision criminalizes "obtain[ing] access to an agricultural operation under false pretenses."26 The three recording provisions criminalize: (1) bugging an agricultural operation; (2) filming an agricultural operation after applying for a position with the intent to film; and (3) filming an agricultural operation while trespassing.27 Governor Herbert signed the bill into law on March 20, 2012.28

On February 8, 2013, Plaintiff Amy Meyer became the first person to be charged under the new law, and seemingly the only person in the country to ever be charged under an ag-gag law.29 Meyer was arrested while filming what appeared to be a bulldozer moving a sick cow at a slaughterhouse in Draper City, Utah.30 Meyer was on public property at the time—meaning her actions did not fall within the statute—but the State nonetheless brought charges. It later dismissed the case against Meyer without prejudice.31

Meyer, along with Animal Legal Defense Fund (ALDF) and People for the Ethical Treatment of Animals (PETA), subsequently filed this lawsuit against Gary Herbert in his capacity as Governor of Utah and Sean Reyes in his capacity as Attorney General of Utah (collectively, "the State"). Plaintiffs challenge the Act as an unconstitutional restriction on speech in violation of the First Amendment and as a violation of the Equal Protection Clause of the Fourteenth Amendment. Both sides have moved for summary judgment.32

ANALYSIS

Plaintiffs argue the Act is unconstitutional because it violates their First and Fourteenth Amendment rights. The State contends some or all Plaintiffs lack standing to sue, and even if some have standing, the Act is constitutional. The court first addresses the State's standing arguments, and then turns to the merits.

Standing

This is not the court's first time addressing Plaintiffs' standing to sue. The State initially moved to dismiss the case on this basis, and the court determined Plaintiffs had properly alleged standing.33 Notwithstanding the State's present objections, the court concludes that Plaintiffs have now sufficiently substantiated those allegations through declarations and deposition testimony.

The Constitution limits this court to deciding justiciable cases or controversies, a restriction courts have distilled into a three-part inquiry. To show standing to sue, a plaintiff must demonstrate (1) an injury, (2) caused by the conduct complained of, (3) that is redressible.34 This inquiry becomes somewhat complicated when the alleged injury, as here, is a chilling effect on speech based on a threat of future prosecution. On the one hand, "allegations of a subjective chill" or "of possible future injury do not satisfy the injury in fact requirement."35 On the other, "a plaintiff need not expose himself to actual arrest or prosecution to be entitled to challenge a statute."36

To balance these competing interests—the constitutional requirement that an alleged injury be sufficiently concrete and the notion that a plaintiff need not take the final step of breaking the law before suing—the Tenth Circuit has developed a three-part test for a plaintiff alleging injury...

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9 cases
  • Project Veritas v. Ohio Election Comm'n
    • United States
    • U.S. District Court — Southern District of Ohio
    • November 20, 2019
    ...Fund v. Herbert , the court considered an Utah statute containing a "lying provision" and three "recording provisions." 263 F.Supp.3d 1193, 1198 (D. Utah 2017). The lying provision criminalized obtaining access to an agricultural operation under false pretenses, and the three recording prov......
  • People for the Ethical Treatment of Animals, Inc. v. Stein, 1:16CV25
    • United States
    • U.S. District Court — Middle District of North Carolina
    • June 12, 2020
    ...the Kansas law violated the First Amendment and granting in part plaintiffs’ motion for summary judgment), and Utah, ALDF v. Herbert, 263 F. Supp. 3d 1193 (D. Utah 2017) (finding Utah's law unconstitutional under the First Amendment and granting plaintiffs’ motion for summary judgment).7 In......
  • Animal Legal Def. Fund, Iowa Citizens for Cmty. Improvement, Bailing Out Benji, People for the Ethical Treatment of Animals, Inc. v. Reynolds
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 27, 2018
    ...difficulty finding standing for the challengers in those cases, some of whom are also Plaintiffs here. See Animal Legal Def. Fund v. Herbert, 263 F.Supp.3d 1193, 1200 (D. Utah 2017) (finding standing for ALDF and PETA to challenge similar Utah law); Animal Legal Def. Fund v. Otter, 44 F.Sup......
  • Animal Legal Def. Fund v. Kelly
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    • U.S. Court of Appeals — Tenth Circuit
    • August 19, 2021
    ...do not raise the same concerns as criminal offenses that have as an element the use of false speech. See Animal Legal Def. Fund v. Herbert , 263 F. Supp. 3d 1193, 1208 (D. Utah 2017) (noting, persuasively, that a line of reasoning similar to that presented by Kansas "confuses two related bu......
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4 books & journal articles
  • The Impact of Citizen Environmental Science in the United States
    • United States
    • Environmental Law Reporter No. 49-3, March 2019
    • March 1, 2019
    ...but that criminalizing obtaining records of such a facility by misrepresentation did not). 114. See Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193 (D. Utah 2017) (inding the statute unconstitutionally overbroad). 115. hese include Alabama, Arkansas, Iowa, Kansas, Missouri, and Nort......
  • Is Meat the New Tobacco? Regulating Food Demand in the Age of Climate Change
    • United States
    • Environmental Law Reporter No. 49-4, April 2019
    • April 1, 2019
    ...v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (striking down Idaho “ag-gag” law on similar grounds); Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193 (D. Utah 2017) (striking down Utah’s “ag-gag” law on similar grounds). 183. 7 C.F.R. §1260.169(d) (2018). 184. Harry Kaiser, Efect of Gener......
  • EATERS, POWERLESS BY DESIGN.
    • United States
    • Michigan Law Review Vol. 120 No. 4, February 2022
    • February 1, 2022
    ...Amendment."). (171.) See, e.g., Wasden, 878 F.3dat 1190 (striking parts of Idaho's ag-gag law); Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193, 1196 (D. Utah 2017) (striking Utah's law); Ag-Gag Laws, ANIMAL LEGAL DEF. Fund, https://aldf.org/issue/ag-gag (172.) See, e.g., Herbert, 2......
  • Free-Speech Rights versus Property and Privacy Rights: "Ag-Gag" Laws and Limits of Property Rights.
    • United States
    • Independent Review Vol. 25 No. 4, March 2021
    • March 22, 2021
    ...At http://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/. Cases Animal Legal Defense Fund v. Herbert. 2017. 263 F.Supp.3d 1193. Animal Legal Defense Fund v. Kelly. 2020. __F. Supp.3d__, 2020 WL 362626 (Dist. Ct., Animal Legal Defense Fund v. Otter. 2014. 44 F.Supp.3d ......

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