Gary Baise Commentaries

Another ag gag lawsuit loss in Arkansas

Here’s a classic example of the courts attempting to legislate when they should not.

Ag gag lawsuits have been around for years. Ag gag laws, by definition, seek to “gag” would-be whistleblowers and undercover activists by punishing them for recording footage of what goes on in animal agriculture.

Two weeks ago the 8th U.S. Circuit Court of Appeals issued a decision that all who are in concentrated animal farming operations (CAFOs) should read. The decision was even picked up by the mainstream media for a change.

This case, Animal Legal Defense Fund v Vaught was issued on August 9, 2021. The Animal Legal Defense Fund, Animal Equality, Center for Biological Diversity and the Food Change Workers Alliance sued Peco Foods and Jonathan and DeAnn Vaught, a Republican Arkansas State Representative. Vaught had sponsored the 2017 law.

Reuters stated Arkansas’s ag gag law “…authorizes farms and other businesses to sue for as much as $5,000 per day if an undercover investigator surreptitiously records operations and shares the information in a way that harms businesses.” Reuters goes on to describe the 8th Circuit reversing a federal judge in Little Rock, AR, who had thrown out the suit.

In a decision only lawyers would love, there is much discussion about the animal rights challengers “lacking standing.” In other words, the challengers suffered no concrete injury. The district judge was concerned that ALDF and its partners had not been sued by Vaught or Peco. (Pretty standard conclusion for a judge to make.)

The good news from the 8th Circuit is that they are remanding the case back to the district court.

Decoding the law

What’s this mean in layman’s terms? The Arkansas Code Annotated 16-118-13 “…prohibits a person who knowingly gains access to a nonpublic area of a commercial property from engaging in acts that exceeds that person’s authority…”  This, the plaintiffs say, violates their First Amendment Free Speech rights.

The 8th Circuit said -- if you can believe this -- that keeping the plaintiffs from doing this and disseminating the information and that the plaintiffs by doing so would face “a credible threat of enforcement.”

The district court tossed out the plaintiffs earlier, believing that the plaintiffs’’ injury was too speculative.”

Making a case

Lawyers know that under any case they bring, for there to be “standing” a plaintiff must show 1) injury in fact; 2) a causal relationship between the injury and the challenged conduct; and 3) that a favorable decision in the plaintiff’s favor will help to address the injury. All lawyers know this, except the lawyers who are judges in the 8th Circuit.

There is case after case which supports these assertions. The dissenting judge on the 8th Circuit disagreed that the plaintiffs had an alleged injury sufficient to go forward. The dissenting judge scolded the majority by saying that defendants’ fears “…of prosecution are currently nothing more than the product of their own imagination and thus are insufficient to constitute an injury in fact.”

The dissenting judge went on to say that there is nothing in the complaint “…that otherwise convinces me that there currently exists a credible threat of prosecution.”

Lessons learned?

What this case teaches us in agriculture is that we must be vigilant in determining who goes on our federal district courts and our U.S. Courts of Appeal. It is cases such as the one Vaught is involved which causes those in agriculture to question the judgment of some of the judges.

The statute passed by Arkansas does not violate the plaintiffs’ rights to free speech. In this case there is no harm; there should be no right to bring an action in U.S. District Court.

The 13-page opinion that was filed on August 9, 2021, is an example of the courts attempting to legislate when they should not.  Only when agriculture, through its spokespeople, gets involved with judicial appointments will there be a possibility of keeping lawyers who become judges from issuing opinions such as the one described.