Even as Idaho joins a handful of other states in passing an ‘ag gag’ bill to criminalize unauthorized recording of livestock operations, the law may not last long on appeal.

The most recent state to pass a so-called “ag gag” law is facing a legal challenge to the Commentary:  Gagging on the lawmeasure’s constitutionality.

The measure, which was signed into law by Idaho Gov. C.L. Otter in February, made Idaho the seventh state in the nation to enact similar legislation.

A lawsuit challenging the constitutionality of the law — Idaho Code sec. 18-7042 — was filed in U.S. District Court for the District of Idaho by activist groups, including PETA, the Animal Legal Defense Fund, the American Civil Liberties Union of Idaho and the Center for Food Safety, according to a story in the Wisconsin Gazette.

The legal brief argued that the Constitution “protects free speech and freedom of the press, including journalistic exposés of industrial animal production.”

As the Animal Legal Defense Fund phrased it, the plaintiffs are “a coalition of organizations dedicated to civil liberties, animal protection, food safety, labor rights and the environment, along with journalists.”

Oh, yeah, journalists. You know, those guys activists call on when they want their news releases published.

Verbatim, preferably.

Trust me, this lawsuit isn’t about freedom of the press. It’s about animal rights. Both PETA and the ALDF proudly position their organizations as “pushing the boundaries of the law” to ensure humane treatment of animals, their definition of “humane,” that is. Their mission statements don’t say peep about journalism.

But here’s the thing: I kind of agree with them. Not on the animal abuse part, but on the “pushing the boundaries of the law” part.

Because although the ag gag laws are aimed at protecting private property rights — and that’s totally legitimate — they run up against First Amendment protections. As is true with any other business that has been legally incorporated, the public does have a “right to know” whether laws are being broken, whether environmental damage might be occurring, whether labor laws are being violated or whether any of a myriad of potentially serious infractions that could impact the public welfare are occurring.

Like the other ag gag statutes, Idaho’s new law criminalizes undercover activities at livestock production sites and specifically targets animal rights advocates, even if they’re exposing illegal practices. For instance, the law makes it illegal for anyone to take any photos or videos at a feedlot, hog barn or packing plant without the business owner’s express consent. If convicted, a person can be sentenced to a maximum of a year in prison and a $5,000 fine.

Those penalties are referenced in the lawsuit, since a first-offense conviction for animal cruelty in Idaho only carries a maximum sentence of six months. As the plaintiffs phrased it, “Someone who exposes animal cruelty is more severely punished those than those who commit it.”

The recipe for prevention

Call them advocates or call them vigilantes, over the last decade or so, people affiliated with animal rights groups, both extreme and moderate, have conducted more than 80 undercover actions at livestock sites and packing plants across the United States, virtually all of which would be considered crimes under the Idaho statute.

I’ll grant you that some of the videos that surfaced have been horrific. As anyone in the business would have to admit, there are some bad actors out there, and a lack of training and/or supervision can and does lead to mistreatment and abuse that is absolutely intolerable.

Of course, there is also plenty of evidence that many — if not most — of the video clips that end up online or in the news have been heavily edited to make them appear as graphic as possible.

But the Idaho law is a cause for concern, in that we the people have a right to know when any institution is breaking the law, whether it’s a government agency operating in secrecy, a too-big-to-fail bank fleecing investors or a religious organization whose officials are covering up sex abuse scandals.

About the only way any of that comes to light is through the diligence of investigative journalists, so a law that simply shuts off any chance of exposing wrongdoing is troubling.

Here’s the problem, though: The activists obtaining jobs at packing plants and livestock sites and then capturing video clips are not journalists. Their interests aren’t focused on the pursuit of truth. That’s a mere side effect of their primary intention: To discredit and demonize anyone engaged in the business of animal agriculture.

In the end, this law is likely to be struck down, if not by the District Court, then on appeal to the Ninth Circuit Court — not because anyone should have unfettered access to a private business to capture something illegal on video, but because the law is too broadly written. It’s too restrictive to shield an entire industry from scrutiny, just because there have been a few outrageous incidents of activists gaining unauthorized entry and capturing images the business owners don’t like.

Journalistic access needs to be protected, as do the operations of a proprietary business.

However, the way to prevent activists from conducting unauthorized filming on the premises is by implementing better security, not by enforcing tougher laws.

And the ultimate answer is for industry is to make sure that even if activists do get inside the gates, there’s nothing going on that’s worth filming.

The opinions expressed in this commentary are solely those of Dan Murphy, a veteran food-industry journalist and commentator.