On August 4, 2015, the District Court for the District of Idaho in Animal League Defense Fund v. C.L. Butch Otter (“Otter“), struck down as unconstitutional an Idaho statute that made it a crime to perform undercover investigations and videography depicting animal welfare, worker safety and/or food safety violations at factory farms, slaughterhouses and other agricultural facilities.

The court found the statute violates the First Amendment by restricting protected speech and discriminating based on content and viewpoint. The court also found the statute violates the Equal Protection Clause both on its face and through its purpose of discriminating against whistleblowers in the agricultural industry.

The ruling is significant, not only for the citizens of Idaho, but also because it establishes important precedent for other challenges to similar unconstitutional “ag gag” laws.

What Is the Factory Farm Trying to Hide?

The facts underlying the Otter case are typical of the circumstances that trigger states’ passage of “ag gag” laws. In 2012, an employee of Mercy for Animals videotaped widespread animal abuse at the Bettencourt Dairies’ Dry Creek Dairy in Hansen, Idaho.

The recordings show unthinkable cruelty to the cows inside the factory; abuse that would not have been disclosed but for the video, which the organization posted on YouTube. The video resulted in criminal charges against the workers shown abusing the animals.

Yet despite the exposed cruelty, the Idaho legislature responded with an “ag gag” law which created more severe criminal sanctions, including possible jail time and criminal fines, for those who expose animal cruelty than for those who commit such atrocities. Idaho legislators referred to the videographers as “terrorists” and “marauding invaders.”

An “ag gag” law is particularly disarming in a place like Idaho, the nation’s third largest producer of milk, with a dairy industry that generated more than $2.5 billion in 2012.

The Idaho story is not isolated. At least seven other states have “ag gag” statutes in one form or another that either make it illegal to photograph or videotape inside a factory farm or slaughterhouse, or require that any photograph or videotape taken be disclosed to authorities within 24 or 48 hours, making it nearly impossible to perform a thorough investigation of malfeasance within the facility.

Utah’s “ag gag” statute makes undercover investigations and recordings of animal agricultural operations a misdemeanor punishable up to one year in jail. That statute is currently being challenged in the federal district court in Utah. The court denied the state’s motion to dismiss on the grounds that the plaintiffs had not suffered harm as a result of the statute.

Investigations on Corporate Agricultural Practices

Rest assured, this area of speech is critically important to the safety of the food we eat and the conditions the animals face within the factories:

  • PETA’s 1998 investigation and hours of video footage of systematic cruelty — including daily beatings of pregnant sows with a wrench and iron pole, skinning pigs alive and sawing off a conscious animal’s legs — resulted in felony indictments of workers of Belcross Farm in North Carolina.
  • PETA’s 2001investigation and video footage of employees of Seaboard Farms in Oklahoma — who routinely threw, beat, kicked and slammed animals against concrete floors and bludgeoned them with metal gate rods and hammers — resulted in the first conviction for felony animal cruelty to farmed animals.
  • PETA’s 2008 investigation of the factory farms of Aviagen Turkeys resulted in the first-ever felony indictments and convictions for farmed poultry.

The recordings of the above abuses, and many more, are important to our society as they influence public opinion and consumer demand.

For example, Purdue University’s Department of Agricultural Economics and Department of Animal Sciences conducted a 2012 consumer survey that demonstrates how the public positively relies on the information gathered and presented by animal protection groups and investigative journalists alike, more than they rely on industry groups and the government combined.

And as the Court noted in Otter, the material Upton Sinclair gathered for his novel, The Jungle, was through his misrepresenting his identity so he could be hired at a meat-packing plant and expose the industry’s intolerable labor conditions and unsanitary conditions in Chicago’s stockyard in the early 20th century. His investigation led to the passage of the Federal Meat Inspection Act and the Pure Food and Drug Act. Yet Sinclair’s practices under Idaho’s statute would have subjected him to criminal prosecution.

Defeating All “Ag Gag” Statutes to Ensure Food and Worker Safety and Prevent Animal Cruelty

I live and practice law in New York and am pleased that my state has taken a different path – one that protects the rights of animals from abuse at the hands of factories raising them for food.

And rest assured, New York’s law, and ones like it in several other states, are the direct result of the brave and dedicated people who enter these facilities and memorialize, for the world to see, the abuses and cruelty the animals suffer at the hands of this industry. Quite the opposite of terrorists, the people who expose these evil practices are heroes whose efforts to ensure food and worker safety and animal husbandry should be applauded.

The victory in the Otter case should be the catalyst for challenging all remaining “ag gag” laws around the country. We welcome the opportunity to work with animal welfare, food safety and worker safety groups in bringing challenges to the remaining laws.


  1. http://bit.ly/1Iitu22 at pp. 6-7.
  2. https://www.youtube.com/watch?v=lN_YcWOuVqk&has_verified=1&oref=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DlN_YcWOuVqk%26oref%3Dhttps%253A%252F%252Fwww.youtube.com%252Fwatch%253Fv%253DlN_YcWOuVqk%26has_verified%3D1&has_verified=1.
  3. Kansas, K. S. A. 47-1825 et seq.; Montana, MT ST 81-30-101 et seq.; North Carolina, H.B. 405 (becomes effective January 1, 2016); North Dakota, North Dakota, ND ST 12.1-21.1-01 et seq.
  4. Missouri, Mo. Rev. Stat. § 578.013.1.
  5. Utah Criminal Code, Title 76, Section 76-6-112.

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