March 19, 2014Client Alert

Are “Ag-Gag” Laws Unconstitutional? The Answer May Be Coming Soon.

Remember the video images of forklifts battering the “downer cows” at the Westland/Hallmark Meat Co. from a few years ago? In some states, there are laws preventing those types of images from ever being provided to the public and authorities. These so-called “Ag-Gag” laws typically prohibit individuals from taking videos or pictures at food manufacturing facilities without permission. Seven states, including North Dakota, Montana and Kansas, who adopted such laws in 1990-91, and Utah, Iowa, Missouri and recently Idaho, who all adopted such laws since 2011, have some element of an “Ag-Gag” law on their books.


But that may change if two constitutional law professors from the University of Denver (UD) have their way. Professor Alan Chen is leading a challenge against Utah’s “Ag-Gag” law that the Utah attorney general has asked the United States District Court to dismiss on the grounds that none of the plaintiffs has standing. The case was brought after an animal activist was charged under Utah’s law, but that matter was dismissed. The current action has been brought on behalf of the Animal Legal Defense Fund. Another UD law professor, Justin Marceau, brought suit against Idaho’s recently adopted law. But because this law is so new, no one has been charged under it yet. Thus, it is likely the Idaho attorney general will also seek dismissal of the suit on standing grounds.


The challenges to both the Idaho and Utah laws are based upon alleged violations of the First and Fourteenth Amendments to the U.S. Constitution and its Supremacy Clause. If the Courts do not dismiss these matters for lack of standing, and the merits of these cases are examined, we will soon have two significant judicial pronouncements on the question of whether “Ag-Gag” laws are constitutional.

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