Opinion

Let’s just call it over. Animal agriculture has lost another one. And this one looks to be the match.

Iowa’s “agriculture production facility fraud” law was struck down by a federal judge on Jan. 9. Three different federal judges have now struck down “ag-gag” laws in Idaho, Utah and Iowa.  Animal activists have won every time. It’s over.

Senior Judge James E. Gritzner of the U.S. District Court for Southern Iowa has already invited the dozen or so lawyers representing the various plaintiffs in the case to submit their legal fees to the court so he can order them paid by Iowa taxpayers

It’s good to be on the winning side.

Alan K. Chen and Justin F. Marceau from the University of Denver’s Strum College of Law and the Animal Legal Defense Fund were the talents that provided the glue that held the many plaintiff lawyers together. Indeed, Chen and Marceau at the moment are one of DU’s winnest teams.

On the surface, Iowa, Utah and Idaho are wins for the First Amendment. Yet, I find myself troubled because this trio of federal judges seems to think deceit and fraud are in every journalist’s toolbox and maybe their hearts.

I guess it’s what you get from Baby Boom judges who all grew up watching Mike Wallace with hidden cameras on “60 Minutes” without realizing that was just early reality television, entertainment not journalism.

The men in black also do not seem to understand that Upton Sinclair was not an undercover journalist, but a fiction writer who hung around the Chicago stockyards to get background information for writing “The Jungle.” Sinclair was out to expose dire working conditions but he ended up accidentally exposing the meat industry’s unsanitary practices.

“I aimed at the public’s heart and by accident, I hit it in the stomach,” the author said.

These judicial opinions do not recognize that back in the day, we had something called “journalistic standards” that said it was verboten for a real journalist to deceive someone about his or her journalistic identity.  Whoever you were talking with as a journalist had the right to know you were a newspaper or broadcast reporter. This kind of requirement was written policy at many a major news organization.

It also made practical sense. Reporters want to earn the trust of the sources. Trust cannot be built on lies about who you are.

Which brings us to these cases, which dealt with how undercover animal activists go about their investigations and states’ attempts to put legal bounds around them.

Undercover investigations of animal facilities are typically carried out by operatives who work for animal rights organizations. The organizations then pitch their findings to the media. Maybe others do, but I do not consider the operatives as journalists. That includes instances where there is an operative skilled in putting pen to paper.

In this latest case, the Iowa Freedom of Information Council and Iowa Center for Public Affairs submitted a Friend of the Court brief out of concern that “normal journalistic practices” were banned by the law. This helped muddle things up.

In squaring that circle, the judge ruled that we lying and deceitful journalists or anyone using our normal but fraudulent ways may do so under the protection of the First Amendment, at least as it involves animal agriculture.

Iowa’s law said a person who obtained access to an agricultural production facility by false pretenses or who made a false statement to obtain employment was committing fraud. It was intended to curb lying on employment applications.

The federal judge who ruled in the Iowa case offered the opinion that the Frist Amendment can serve as a get out of jail card for lying. “To some degree,” Judge Gritzner wrote, “the concept of constitutional protection for speech that is false may be disquieting.”

So, let me get this straight. My profession, or at least its normal practices, are seen by the federal courts as potentially fraudulent and deceitful and that, upon further judicial review, they might be protected by the First Amendment.

Animal activists have reason enough to celebrate, but I feel a little dirty.

Also, I doubt these decisions are really going to do me much good if I opt to go undercover at, say, a defense contractor, some Silicon Valley bemouth, or any federal court in the land. Of course, any of those examples are locked up tighter than a tick with armed guards and the most sophisticated security technology.

Can you imagine lying on an application to obtain employment at a defense contractor or with federal courts? Could I ever expect the First Amendment to protect me for using falsehoods (i.e. lying through my teeth) even as a working journalist? With all due respect to these opinions, I wouldn’t go there. I want to get through life without being prosecuted.

The federal judge in the Iowa case tries to spell out when false statements will be protected by the First Amendment and when they won’t.   When you are doing your lying you cannot do “legally cognizable harm” or provide “material gain.” So, instead of telling your children to tell the truth, explain this fuzz ball to them.

But, it is what it is.

Animal agriculture did not have a unified defense in these cases. It did not have anything like the tight legal strategy that Chen-Marceau team brought to the plaintiffs. None of the state attorney general offices seemed to have their act together.

In Iowa, Idaho and Utah, it looked like animal agriculture used state political power to punish animal activities shortly after one or more embarrassing undercover investigations.    Judges use words like “animus” when they talk about what occurred. To most casual observers, animal agriculture was the bully.

The end of this story was written accordingly.

There will be a cleanup phase. It will probably play out fairly quickly. The Iowa AG could file an appeal in the 8th Circuit. A dismissed case in North Carolina was ordered heard on appeal. It is now being argued in District Court.    The animal activists may still challenge older  “ag-gag” statutes, mostly in the Midwest.

But it is over.

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Photo of Dan Flynn Dan Flynn

Editor Dan Flynn is a Northern Colorado-based writer and editor with more more than 15 years of food safety experience. As a public affairs professional, he worked with government and regulatory agencies at the local, state, and federal levels. His career as a journalist included working for newspapers throughout the West, from the Black Hills to Seattle. His on-scene reporting on the collapse of the Idaho’s Teton Dam and the suicide bombing at Washington State University’s Perham Hall was carried by newspapers around the world and was recognized both times regionally by the Associated Press for Best Reporting on a Deadline. Most of the disasters he attends these days involve food illnesses.