Court Rules 'Ag-Gag' Law Criminalizing Undercover Reporting Violates the First Amendment

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: January 23, 2019 at 10:30:17 PM GMT+9
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] Court Rules 'Ag-Gag' Law Criminalizing Undercover Reporting Violates the First Amendment
> Reply-To: dewayne-net () warpspeed com
>
> Court Rules ‘Ag-Gag’ Law Criminalizing Undercover Reporting Violates the First Amendment
> The unconstitutional law was meant to protect agribusinesses from public scrutiny.
> By Esha Bhandari
> Jan 22 2019
> <https://medium.com/aclu/court-rules-ag-gag-law-criminalizing-undercover-reporting-violates-the-first-amendment-85fc90ae478>
>
> In a win for freedom of the press, a federal court this month struck down an Iowa law making it a crime to lie about 
> your intentions when accessing an agricultural production facility.
>
> The “ag-gag” law, which was aimed at undercover journalists and activists, essentially prevented undercover 
> investigations of the agricultural industry. The court rightly found that the law violates the First Amendment.
>
> This welcome ruling joins a host of other court decisions finding similar laws in other states to be unconstitutional 
> — and for good reason. Undercover reporting is a critical tool to inform the public about corporate wrongdoing. 
> Overbroad laws criminalizing false speech violate the First Amendment and prevent investigative journalism from 
> holding powerful private actors to account.
>
> Iowa was one of many states that passed ag-gag laws criminalizing various activities essential to undercover 
> investigations aiming to expose animal cruelty and other illegal or unsafe activities. These laws were passed after 
> several high-profile undercover investigations revealed various abuses, such as sick cows being repeatedly shocked 
> with electric prods in California and young calves being kicked and skinned alive at a Vermont slaughterhouse. Such 
> investigations have prompted large-scale meat and egg recalls. That is why the ag-gag laws sparked opposition from 
> press freedom and civil liberties groups as well as animal rights, environmental justice, and food safety advocates.
>
> One major area of constitutional concern is that ag-gag laws often make it a crime to be untruthful when gaining 
> access to an industrial farm or similar place — for example, by not disclosing that you are an investigative 
> journalist or activist when applying for a job.
>
> Why is it a constitutional problem to outlaw lying? Because the First Amendment protects false speech where there is 
> no legally recognizable harm. The Supreme Court has held that while certain limited categories of false speech, such 
> as perjury, are inherently harmful and can be outlawed, the First Amendment does not permit outlawing all lies — even 
> distasteful lies that have no social benefit.
>
> When it comes to undercover investigations, however, lying is done in service of the public good — and not only in 
> the agricultural industry. The enforcement of anti-discrimination laws, for example, has long relied on undercover 
> audit testing of landlords and employers to ensure they do not treat housing or job applicants differently based on 
> protected class status such as race, gender, or disability.
>
> Such testing often requires false speech, for example when submitting identical, false resumes to an employer that 
> vary only by the name of the applicant, or when a housing tester misrepresents her intention to actually rent a home. 
> The federal government and the courts have recognized for decades that these tactics are a critical part of upholding 
> civil rights protections.
>
> In a similar vein, the ACLU is currently representing researchers who are asserting their First Amendment right to 
> submit false information online as part of testing websites to uncover algorithmic discrimination in housing and 
> employment opportunities.
>
> That is why it is encouraging that the court considering the Iowa law concluded that there are constitutional 
> problems with outlawing false speech in service of undercover journalism. Courts have also struck down ag-gag 
> provisions prohibiting recording or collecting information in Idaho, Utah, and Wyoming on First Amendment grounds.
>
> [snip]
>
> Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> Twitter: https://twitter.com/wa8dzp



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