Animal Legal Defense Fund v. Wasden
878 F.3d 1184
| 9th Cir. | 2018Background
- In 2012 Mercy for Animals released undercover video showing animal abuse at an Idaho dairy; public outcry and threats to the farm followed.
- Idaho enacted Idaho Code § 18-7042 (Interference with Agricultural Production) criminalizing entry by force/threat/misrepresentation/trespass (§(a)), obtaining records by those means (§(b)), obtaining employment by misrepresentation with intent to harm (§(c)), and making audio/video recordings of agricultural operations without consent (§(d)).
- ALDF sued Idaho AG, challenging subsections (a)–(d) on First Amendment and Equal Protection grounds; district court granted summary judgment for ALDF and enjoined enforcement.
- Ninth Circuit framed analysis under United States v. Alvarez (false speech doctrine) to decide which misrepresentation provisions regulate protected speech or inflict legally cognizable harms.
- Court held subsections (a) (entry-by-misrepresentation) and (d) (recordings ban) burden protected speech and are unconstitutional; subsections (b) (records) and (c) (employment with intent-to-harm) regulate unprotected or properly limited conduct and are upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether criminalizing misrepresentation to gain entry (§18‑7042(l)(a)) is protected speech | ALDF: misrepresentation-to-enter is pure speech; statute chills investigative journalism and is overbroad/viewpoint‑based | Idaho: misrepresentation is conduct inducing entry (material advantage) and can be criminalized to protect property | Entry-by-misrepresentation regulates protected speech; misrepresentation term must be severed (provision invalid as written) |
| Whether obtaining facility records by misrepresentation (§(b)) is protected speech | ALDF: forbids investigative reporting/whistleblowing | Idaho: obtaining records harms property/privacy and confers material gain; fits traditional property/criminal statutes | Upheld: obtaining records by misrepresentation inflicts legally cognizable harm and is not First Amendment protected speech |
| Whether obtaining employment by misrepresentation with intent to harm (§(c)) is protected speech | ALDF: employment-based undercover investigations are journalistic and protected | Idaho: offers of employment are material gains; statute requires intent to cause injury and targets harmful conduct | Upheld: fits Alvarez’s fraud/material‑gain exception; not protected speech and passes equal protection review |
| Whether banning audio/video recordings of agricultural operations without owner consent (§(d)) is permissible | ALDF: recording is expressive activity; ban targets subject matter and viewpoint and is overbroad | Idaho: recording threatens privacy/property and can be regulated to protect facilities | Struck down: recording is protected speech; clause is content‑based and fails strict scrutiny (both under‑ and over‑inclusive) |
Key Cases Cited
- United States v. Alvarez, 567 U.S. 709 (2012) (false speech is not categorically unprotected; lies may be regulated when causing legally cognizable harm or made for material gain)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based speech regulations are subject to strict scrutiny)
- Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (audiovisual works and media are protected speech)
- Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (trespass/responsibility for misrepresentations by reporters in investigative contexts)
- Desnick v. Am. Broad. Cos., Inc., 44 F.3d 1345 (7th Cir. 1995) (limits on civil trespass claims against undercover reporters; entry misrepresentation analysis)
- Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (expressive conduct includes the process of creating expressive works)
- Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (First Amendment right to film matters of public interest)